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"^P|J';|so' cases before the High Court a
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REPORTS OF CASES
BEFORE
THE HIGH COURT
CIRCUIT COURTS OF JUSTICIARY
U SCOTLAND,
DURING '
THE YEARS 1848, 1849, 1850, 1851, 1852.
BY
JOHN SHAW, ESQ.
ADVOCATE.
EDINBURGH:
T. & T. CLARK, LAW-BOOKSELLERS.
LONDON : BENNING & CO.
MDCCCLIII.
PRINTED BV MACPHEKSON & SYME, 12 ST DAVID STKEET, EDINBUKGH.
JUDGES
OF THE
COURT OF JUSTICIARY
DURING THE PERIOD OF THESE REPORTS.
LOED JUSTICE-GENERAL. 1841. The Right Honourable DAVID BOYLE.
LORD JUSTICE-CLERK.
1841. The Right Honoheable JOHN HOPE.
LORDS COMMISSIONERS OF JUSTICIARY. 1824. JOSHUA HENRY MACKENZIE, LORD MACKENZIE. 1829 Sia JAMES WELLWOOD MONCREIFF, LORD MONCREIFF. 1830. JOHN HAY FORBES, LORD MEDWYN. 18,37. HENRY COCKBCRN, LORD COCKBURN. 1843. ALEXANDER WOOD, LORD WOOD.
1849. JAMES IVORY, LORD IVORY.
1850. DUNCAN M'NEILL, LORD COLONSAY. 1861. JOHN COWAN, LORD COWAN.
1852. ADAM ANDERSON, LORD ANDERSON.
LORD ADVOCATE. 1846. ANDREW RUTHERFURD.
1851. JAMES MONCREIFF.
1842. DUNCAN M'NEILL.
1852. ADAM ANDERSON. 1852. JOHN INGLIS.
SOLICITOR-GENERAL.
1846. THOMAS MAITLAND.
1850. JAMES MONCREIFF.
1851. JOHN COWAN.
1851. GEORGE DBAS. 1842. ADAM ANDERSON.
1852. JOHN INGLIS. 1852. CHARLES NEAVES.
IV
1841. DAVID MILNE. 1843. DAVID MURE.
1845. CHARLES BAILLIE.
1846. GEORGE DBAS.-
1846. JAMES CRAUFURD.
1847. E. F. MAITLAND.
ADVOCATES DEPUTE.
1847. J. M. BELL.
1849. GEORGE YOUNG.
1850. THOMAS CLEGHORN.
1851. G. DINGWALL FORDYCE. 1851. ANDREW R. CLARK.
1841. 1847.
CROWN AGENT. JAMES TYTLER, W. S. JOHN CLERK BRODIE, W.
INDEX OF NAMES.
Balfour, David, High Court, July 20, 1850,
Barr, John, Ayr, May 1, 18S0,
Baxter, Gilea v., High Court, Mar. IS, 1849,
Beattie, Ebenezer, Dumfries, April 28, 18S0,
Bell, David, Perth, April 25, 1 8S0,
Bennison, William, High Court, Aug. 1, 1850,
Blytha «. M'Bain, High Court, Feb. 20, 1862, .
Blyth, Isabella, Perth, April 29, 1852, .
Bruce v. Duncan and M'Lean, Perth, Oct. 13, 1848,
Burnet, Bums «., High Court, June 12, J 850,
Burnett, Robina, and Others, High Court, Nov. 17, 1861,
Burnett, Etch and Golf d.. High Court, Mar. 16, 1849, .
Bums V. Moxey, High Court, Feb. 21, 1850,
Bums ». Bumet, High Court, June 12, 1850,
Cameron, William, Glasgow, Dec. 22, 1861,
Cameron, John, High Court, Jan. 31, 1860,
Chapman v. Colville, High Court, Dec. 14, 1850,
Clark, William, and Janet Gray or. Thomson, Aberdeen,
Sept. 20, 1849, ..... Chambers, Agnes, and Helen Henderson, High Court, July 26,
1849, ......
Chisholm, James, lEgh Court, July 9, 1849,
Colville, Chapman v.. High Court, Dec. 14, I860, . ,
Connor, Dennis, & Edward Morrison, Glasgow, Sept. 23, 1848,
Craig V. Steel, High Court, Dec. 20, 1848,
Crawford, Alex. Fraser, High Court, Jan. 6, & Feb. 11, 1850,
Crawford and Dill, Simpson v., High Court, Dec. 22, 1861,
Cross, Phillips and Ford v., High Court, Dec. 20, 1848,
Crossgrove or Bradley, Catherine, High Court, Feb. 6, I860,
Cumming, James, and Others, High Court, Nov. 7, 1848,
Daly, Helen, and Helen Kirk or James, Dumfries, April 27,
1850,
Dinwidie v. Knox, Stirling, April 1 7, 1849, Dowd, Theodore, and Darby Furie, High Court, June 8, 1862, Duncan and M'Lean, Bruce v., Perth, Oct. 13, 1848, Duncan, Chrisjaan, Aberdeen, April 24, 1849,
Duncan, Walter, Perth, Sept. 26, 1849,
PAOB
Culpable Neglect of Duty, 377
Rape, &e. |
362 |
Suspension, |
203 |
Theft, &c. |
356 |
Night Poaching, |
348 |
Murder, |
453 |
Suspension, |
654 |
Murder, |
567 |
Appeal, |
12 |
Appeal, |
373 |
Theft, |
497 |
Suspension, |
201 |
Suspension, |
330 |
Appeal, |
373 |
Theft, |
526 |
Murder, . |
296 |
Suspension, |
466 |
> Murder, |
267 |
Robbery or The |
sft, . ?52 |
Falsehood, Frai |
id, &c. 241 |
Suspension, |
466 |
Rape, |
5 |
Suspension, |
148 |
Threatening Le |
tters, &e. 309 |
Suspension, |
623 |
Suspension, ' |
139 |
Theft, |
301 |
5 Contravention I 12th Vict. c. |
of llth& |
12, . 17 |
Theft, &c.
Appeal, . . 216
Theft, ... 676 Appeal, . . 12
Theft by Housebreaking, 225 I Breach of Trust and Em- ( bezzleraent, . 270
354
INDEX OF NAMES.
Duncan, William, and Alexander Gumming, High Court, ) „ .
March n,18S0, J * orgery, »c.
I Appeal,
Dundee and Union Whale Fishing Co., and Mavour and Pa- ton 2,., Perth, Oct. 13, 1848,
Dutliie, Ann, Aberdeen, April 24, 1 849,
Etch and Golf «. Burnett, High Court, Mar. IS, 1849, .
Falconer and Others, High Court, Jan. 26, 1852,
Fegan, Alexander, & Elizabeth M'Kenzie or Hyde, Glasgow,
Sept. IS, 1849, .... Finnie v. Gilmour, High Court, June 11, IBSO, Flinn, James, and Margaret M'Donald, Perth, Oct. 12, 1848, Fraser, Daniel, High Court, June 3, IBSO,
Galloway, Peter, High Court, Feb. 24, 18S1 ,
Glass, Methvent)., High Court, Dec. 20, 1848, .
Gibson, Jas., & Malcolm M'Millan, High Court, Mar. 12,1849,
Giles V. Baxter, High Court, Mar. 16, 1849,
Gilmour, Finnie v., High Court, June 11, 1850,
Graham v. Moxey, High Court, Feb. 17, 1849,
Hall, James, and Others, High Court, July 25, 1849, Hamilton, John, and Mary Garden or Hamilton, High Court,
Jan. 2, 1849, . . . •
Henderson v. M'Auley and Go., Glasgow, April 26, 1849, Henderson, Thomas, George Langlands, and John Williams,
High Court, Aug. 29, and 30, 1 850, . . 1
Hendrie, Wyher and Others v., Glasgow, Sept. 17, 1849, Hogg, Thomas, High Court, June 9, 1851, Howden, George, Jedburgh, April 8, 18S0, Home, Watt v., High Court, Dec. 8,^1851, Hoyes, James, High CoHrfr, Dec. 11, 1848,
Jameson v. Palmer, High Court, June 2, 1849,
Kennedy, E. of Selkirk, v., High Court, Dec. 14, 18S0, kiellor, Jean, High Cotirt, Nov. 20, 1850, Kilgour, Joseph, High Court, Dec. 8, 1851, Kljppen, George, High Court, Nov. 6, 1849, Knox, Dinwidie v., Stirling, April 17, 1849,
Launders v. Mann and Co., Perth, April 24, 18S0,
Lock, J. and P. Doolen v. Steel, High Court, Feb. 6, 1850.
Lockie v. M'Whirter, High Court, Feb. 15, 1849,
Lyon and Main, Macdonald v.. High Court, Dec. 8, 1851 '
M'Auley and Co. Henderson v., Glasgow, April 26, 1849,
Mackay, Meekison and Tutor v., High Court, Feb. 13 1849
M'Bain, BIyths v., High Court, Feb. 20, 1862,
Mackean «. Wilson, High Court, Deo. 9, 1 848,
Macpherson, Welsh v., Inverness, April 19, 1850,
Macdonald v. Lyon and Main, High Court, Dec. 8, 1851, Suspension,
i Wanton and Malicious Mischief,
Suspension, . f .
Bobbery, &c.,» Forgery,
Suspension, Culpable Homicide, Theft,
Culpable Homicide,
Supension,
Theft, &c..
Suspension,
Suspension,
Suspension,
Falsehood, Fraud, &c,
Reset of Theft,
Appeal,
Culpable Homicide, &c.
Appeal, Murder, Forgery, Suspension, Theft, &c.' .
Suspension,
Suspension,
ConcealmentofPregnaneyj Theft, &c.
Falsehood, Fraud, &c. Appeal,
Appeal, Supension, Appeal, Suspension,
Appeal, Suspension, Suspension, Suspension,
PAGB
335
15
227
201
546 261
368
9
365
470 146 191 203 368 168
254
149
219
394
266 484 351 619 134
238
463 ,S76 501 276 215
347 307 161 516
2)9 169 654 1.S2 345 516
INDKX OP NAMES.
M'Gall, William, High Court, March 13, 1849,
J|:'Neillage, Hugh, Inrerary, Sept. 18, 1850, M'Millan, Margaret, High Court, Jan. 6, 1851, Manh and Co., Launders v., Perth, April 24, 186Q, ' M'Walter or Murray, Elizaheth, High Court, Feb. 2, 1862, Marshall v. Turner, Glasgow, April 26, 1849, Mathison v. Monkland Iron & Steel Co., Glasgow, Sept. 17,1849, Matson, Alexander, High Court, Nov. 27, 1 849, Mavour and Paton v. Dundee and Union Whale Fishing Co., J Perth, Oct. 13, 1848, - . . . i
Meekison and Tutor v. Mackay, High Court, Feb. 1 S, 1 849, Menzies, Alexander James Petty, High Court, Feb. 5, 1849, Methven v. Glass, High Court, Dec. 20, 1848, Middlemiss v. D'Eresby, High Court, March 16, 1852, Miller, Arch., & Susan Brown or Miller, High Court, Jan. 3, 1850, Mitchell, Hannah, High Court, Jan. 4, 1850, M'Kichen or Charters v. Moir, Dumfries, April 19, 1 849, Monkland Iron & Steel Co., Mathison?)., Glasgow, Sept. 17, 1849, Mgoney, John, High Court, Nov. 17, 1851, Mooney, John, High Court, Dec. 8, 1851, Moxey, Graham v., High Court, Feb. 17, 1849, Moxey, Telfer v., High Court, June 2, 1849, Moxey, Bums «., High Court, Feb. 21, 1860, Moxey, Sleigh and Russell v., High Court, June 12, 18S0, Murdoch, John Elder, Perth, May 2, 1849, . Muir, M'Kichen or Charters »., Dumfries, April 19, 1 849, M'Whirter, Lockip v., High Court. Feb. 16, 1849,
O'Neill, John, High Court, June 2, 1851,
Park and Others v. Earl of Stair, High Court, Jan. 1 2, ) 862,
Paterson, John, and David Ritchie, Stirling, Sept. 7, 1848,
Peanver, Peter, High Court, Nov. 1 6, 1850,
Phillips and Ford ». Cross, High Court, Dec. 20, 1848,
Pilmer, Ritchie v., High Court, Dec. 20, 1848,
Pihner, Jameson ii:, High Court, June 2, 1 849,
Purves, James, High Court, Nov. 20, 1848,
Pyott, G. B. and W. B., High Court, June 16, 1851, .
Quillichan, Patrick, High Court, Jan. 24, 1852,
Rait, WilUam, High Court, Nov. 1 7, 1 85 1, Reid, Veitch and Others v.. High Court, June, 2, 1 849, Ritchie v. Pilmer, High Court, Dec. 20, 1848, Robertson, James, Perth, July 28, 1850, Robertson, John Gordon, High Court, Feb. 19, 1849,
Simpson v. Crawford and Dill, High Court, Deo. 22, 1851,
Saffley, Threshie v., Dumfries, April 1 9, 1 852,
Selkirk, Earl of,!), Kennedy, High Court, Dec. 14, 1850,
Sellers, Daniel, Inverary, Sept. 24, 1851,
Sleigh and Russell v. Moxey, High Court, June 12, I860,
Smith ». Skinner, Dumfries, April 8, 1851,
; Embezzlement and Breach
of Trust, |
194 |
Cattle Stealing, |
459 |
Culpable Homicide, |
468 |
Appeal, |
. 347 |
Swindling, |
552 |
Appeal, |
222 |
Appeal, |
266 |
Murder, |
127 |
Appeal, |
16 |
Suspension, |
169 |
Forgery, &c. , |
153 |
Suspension, |
146 |
Suspension, |
■ ^S7 |
Forgery, &c. |
288 |
Murder, &c. |
293 |
Appeal, |
223 |
Appeal, |
266 |
Theft, |
496 |
Base Coin, |
$09 |
Suspension, |
168 |
Suspension, |
231 |
Suspension, |
330 |
Suspension, |
369 |
Wilful Damage, |
329 |
Appeal, |
223 |
Appeal, |
161 |
Theft, |
483 |
Suspension, |
532 |
Robbery, |
! |
Murder, |
462 |
Suspension, |
139 |
Suspension, |
■ 142 |
Suspension, |
238 |
Bigamy, , |
■ . m |
Fire-raising, |
. 490 |
Bigamy, |
537 |
Falsehood, &c. |
500 |
Suspension, |
236 |
Suspension, |
142 |
Murder, |
447 |
Theft, &o. |
186 |
Suspension, |
623 |
Appeal, |
563 |
Suspension, |
463 |
Note, 648 |
|
Suspension, |
369 |
Appeal, |
481 |
VIU
INDEX OF NAMES.
Stair, Earl of. Park and Others v.. High Court, Jaa. 12, 18S2,j Steel V. Craig, High Court, Deo. 20, 1848, Steel, Lock, J. and P. Doolen v.. High Court, Feb. 6, 1850, Stevens, John, Glasgow, Jan. 11, 1850,
Sutherland, Mai'y, and Isabella Gibson or Murray, High Court, Dec. 11, 1848, ....
Tait, Jacob, and John Taylor, Jedburgh, April 16, 1851, Taylor, John, Jacob Tait, Jedburgh, April 16, 1851, Telfer v. Moxey, High Court, June 2, 1849, Thomson, John, High Court, Dec. 4, 1848, Threshie v. Saffley, Dumfries, April 19, 1852, Turner, Marshall »., Glasgow, April 26, 1849,
Vance, Robert, Glasgow, March 23, 1849,
Veifoh and Others s.Reid, High Court, June 2, 1849,
Walker, James, Wilson and Others, Glasgow, Jan. 14, 1850,
Watson, Wilson ()., Perth, Oct. 1, 1851,
Watt V. Home, High Court, Dec. 8, 1851,
Welsh V. Macpherson, Inverness, April 19, 1860,
Wilson, Mackean «., High Court, Dec, 9, 1848,
Wilson «i. Wataon,Perth, Oct. 1,1851, . . '
Wyher and Others J". Hendrie, Glasgow, Sept. 17, 1849,
Suspension, |
532 |
Suspension, |
148 |
Appeal |
307 |
Murder, |
287 |
Con. 2d and 3d Will. IV. |
|
u. 36, |
1.3S |
Deforcement, |
475 |
Deforcement, |
475 |
Suspension, |
231 |
Con. 10th Geo. IV. c. |
48, 129 |
Appeal, |
563 |
Appeal, |
222 |
Culpable Homicide, |
210 |
Suspension, |
236 |
NoU, 648 |
|
Appeal, |
493 |
Suspension, |
619 |
Appeal, |
345 |
Suspension, |
132 |
Appeal, |
493 |
Appeal, |
266 |
Yates and Parkes, Glasgow, Dec. 24, 1851,
Rape, &c.
528
REPORTS, &c.
WEST CIRCUIT.
STIRLING.
Autumn 1848.
Judges — Lords Moncreiff and Cockburn.
Her Majesty's Advocate — Deas A.D.
AGAINST
John Paterson and Datid Ritchie — Grahame.
Indictment — Locus — Variance. — Held that there is no land in Scotland truly extra-parochial, and that in the case of a peculiar jurisdiction it is sufficient to lihelthe offence alternatively, as having been committed within one or other of the adjacent parishes. Question, whether it is a fatal objection when a wrong parish is named in the libel, if it be shewn in proof, that the locus mentioned is situate in another parish.
John Pateeson and David Ritchie were charged jo^a'pa- with Robbery ; as also Assault ; as also with Theft : teraon and
Ritchie.
In so far as (1.), on the 10th day of March 1848, or on one or Stirling.
other of the days of that month, or of February immediately preceding, Sept. 7.
or of April immediately following, on or near the public road leading 1_
from Stirling to Dumbarton, and at or near a part of the said public I'otbery. road situated in the parish of Saint Ninians, or parish of Stirling, and county of Stirling, and about one hundred and fifty yards, or thereby, east from the bye-road leading from the said public road to the King's Park Quarry, or at or near some other part of the said public road situated in the said parishes, or one or other of them, to the prosecutor unknown, you the said John Paterson and David Ritchie did, both and each, or one or other of you, wickedly and feloniously, attack and as-
A
2 CASES BEFORE THE HIGH COURT
No. 1. sault John Johnstone, a shoemaker, then and now or lately residing terron^n'd ^* °^ "^^'' TouCh, in the parish of Saint Ninians, and county aforesaid, David and did seize hold of him by the shoulders, and did kick him upon or ^'*"'''^- near the feet and legs, and did thereby, or otherwise, bring him down Stirling, upon his back to the ground, and did lie above him, and did place your ^ms.' ^^^^ °^ ^^''^^ "PO"! ^^^ mouth, and did rifle his pockets ; and you did, ■g^y^^J^ both and each, or one or other of you, then and there, wickedly and ^'^^' feloniously, and by force and violence, take from his pockets or person, and did fob him of, a halfpenny copper piece, the property, or in the lawful possession, of the said John Johnstone : Likeas (2.) on the 14th day of April 1848, or on one or other of the days of that month, or of March immediately preceding, or of May immediately following, on or near the public road leading between Stirling and Callander, and at or near a part of the said road situated in the parish of Saint ■ Ninians, and county aforesaid, and one hundred and sixty-eight yards or thereby to the eastward of Kildean Toil-Bar, in the parish of Saint Ninians, and county aforesaid, now or lately occupied by John John- ston, toll-keeper, now or lately residing there, or at or near some other part of the said public road situated in the said parish and county, to the prosecutor unknown, you the said John Paterson and David Ritchie did, both and each, or one or othet of you, wickedly and felo- niously, attack and assault Thomas Bilsland, a brick- moulder, then and now or lately residing in or near Cowan Street, in or near Stirling, and did, with your fist or fists, strike him a blow or blows on or near his face, and did throw or force him down upon his face to the ground, and did repeately strike him on or near the back part of his head while he was lying on the ground, and did seize him by the neck or throat, and endeavour to choke' him, and did thrust your hand or hands, or part thereof, into his mouth, and did tear open his coat or great-coat, and did search one or more of his pockets, and did otherwise maltreat and abuse him ; and all this, both and each, or one or other of you, did, with intent to rob the said Thomas Bilsland : Likeas (3.) on the night of the 14th, or morning of the 15th, day of April 1848, or on one or other of the days of that month, or of March immediately pre- ceding, or of May immediately following, on or near Broad Street of Stirling, and at or near that part of sajd street which is in front of, or near to, the shop in said street then and now or lately occupied by William Peddie, then and now or la,tely bookseller there, you the said David Eitchie did, wickedly and feloniously, attack and assault Mar- garet Clark, then or lately residing with James Roberts, in or near Jail Wynd of Stirling, and now or lately residing in or near High Street of Linlithgow, with her father, James Clark, shoemaker, and did throw or force her down upon her back on the ground, and did forcibly thrust your hand into the breast or front part of her dress ; and you the said David Ritchie did, then and there, wickedly and feloniously, and by force and violence, take from her person, and did rob her of.
Robbery.
AND CIRCUIT COUETS OF JUSTICIARY. 3
a small bag or purse, sevenpence sterling, or thereby, in silver money, No. 1. and fourpence sterling, or thereby, in copper money, the property, or ^°^ ,
in the lawful possessiouj of the said Margaret Clark : Or otherwise, David
time and place last above libelled, you the said David Eitchie did, ^'*°^'^-
wickedly and feloniously, steal and theftuously away take from, or Stirling.
from near the person of the said Margaret Clark, the aforesaid bag or i848 purse, sevenpence sterling, or thereby, in silver money, and fourpence sterling, or thereby, in copper money, the property, or in the lawful possession, of the said Margaret Clark.
In the course of the trial, it appeared that the locus stated in the libel, was situated neither in the parish of St Ninians, nor in that of Stirling, but within the extra-parochial jurisdiction or district of the constabulary of Stirling Castle.
In respect of the second charge, it appeared that the locus, although correctly described otherwise, was situate not in the parish of St Ninians, but in that of Stirling.
Geahame for the pannels, in addressing the Jury, argued in respect of the first and second charges, there was a misdescription of the locus in the indictment. He admitted that it would have been unnecessary for the prosecutor to have named the parish, but contended, that where a parish was mentioned, it was a fatal objection if it was shewn in proof that the locus set forth was not within its boundaries. Alison, vol. ii. p. 262-3, and cases there cited, particularly those of Peter Gordon, Perth, Sept. 28. 1812, Robert Henning, Aberdeen, Sept. 1821, and Thomas M'Pherson, Inverness, Spring 1824.
Lord Moncreiff charged the Jury, that, in point of law, there was no land in Scotland that was extra-paro- chial. All land whatever was situated in some parish, Ross V. Earl of Haddington, 3 Shaw, 115 (N. E. 76), and therefore in describing the locus of the first robbery as in the parish of St Ninians or parish of Stirling, he had given the correct description, and there were no grounds for sustaining the objection stated to that charge. In regard to the argument maintained relative to the second charge, the Jury would judge whether the evidence sup-
4 CASES BEFORE THE HIGH COURT
No. 1. ported the pannel's contention, that the crime, if com-
John Pa- '■ '^ tj T • A a
terson and mitted by the pannel, of which they would also juage,
RiteMe. was perpetrated at a spot in Stirling parish, instead of
Stirling. St Ninians, as libelled. As to the law which had been
m*8/' quoted, he had long been of opinion that it was errone-
Robbery. ous, and it was seriously doubted by some of the most
eminent lawyers at the time when the leading cases
were decided. It would be best for the Jury to return
a verdict with a special finding relative to this point.
The Jury returned the following verdict : — ' The Jury ' unanimously find both the pannels guilty as libelled, ' of the charges of robbery under the first and third ' charges in the indictment, and of the assault with in- ' tent to rob in the second charge, and are satisfied as ' to the accuracy of the locus mentioned in the indict- ' ment where the second charge was committed, but are ' not prepared to say in what parish.'
Whereupon it was objected, that this amounted to a verdict of acquittal on the second charge, and the Advo- cate-Depute declined to move for sentence on that part of the case, confining himself to the first charge.
Lord Moncreiff said, he would have certified the point had the Public Prosecutor moved for sentence. He was not now required to do so, but he would inti- mate that his own opinion was contrary to the view taken by Mr Alison, and pressed by the pannels' counsel.
In respect of which verdict of assize, so far as regard- ed the first and third charges, the pannels were sen- tenced to be transported for the period of ten years.
AND CIRCUIT COURTS OP JUSTICIARY.
GLASGOW.
Judges — Lords Moncreifp and Cockburn. Sept. 23.
1848.
Her Majesty's Advocate — Deas A.D.
AGAINST
Dennis Connor and Edward Morrison. — W. H. Thornton.
Eape — Locus — Insufficient description. — Question, 1st, Whether, in the particular circumstances, the locus, where a rape was said to have been committed, was described with sufficient accuracy. 2d, Whether the description of the party said to have been injured was not too vague.
Dennis Connor and Edward Morrison were charged No. 2. with Rape ; as also, Assault, committed with, Intent to connor and Ravish, and to the effusion of blood and injury of the ^o^^on
person : Glasgow.
Sept. 23. 1848. In so FAR AS (1.), on the 25th day of August 1848, or on one or
other of the days of that month, or of July immediately proceeding, on A^g^idt' or near the public or parish road commonly called or known by the name of the Craig Road, leading from the farm-st§ading of the lands or farm of South Medrox, in the parish of New Monkland aforesaid, then and now or lately occupied by William M'Lean senior, then and now or lately residing there, to or in the direction of Cumbernauld, in the parish of Cumbernauld, and county of Dumbarton, and at or near a part of the said road situated in the parish of New Monkland afore- said, which is distant 246 yards, or thereby, from the farm -offices of South Medrox aforesaid, or at or near a gate or entrance into a park or field upon the lands or farm of South Medrox aforesaid, commonly called the Kilknowe Park, situated in the parish of New Monkland aforesaid, or at or near some other part of the said road, or of the said lands or farm, situated in the parish of New Monkland aforesaid, to the prosecutor unknown, you the said Dennis Connor did, wickedly and feloniously, attack and assault Mary Houston, then and now or lately servant to, and residing with, the said James M'Lean senior, and did seize hold of her, and did, with a stick, or with some other weapon to the prosecutor unknown, strike her two more blows on or
6 CASES BEFORE THE HIGH COURT
No. 2. near her breast and stomach, or other part or parts of her person, and
Connorand ^^^ P"^* y°^^ ^^'^^ under her petticoats, and upon her naked person,
Edward and did seize her by the throat to prevent her crying for assistance,
'^°"''"''°- and did throw or force her down to the ground ; and the said Mary
Glasgow. Houston having succeeded in rising from the ground, you the said
1848. ' Dennis Connor did drag or pull her some short distance, and did again
r; : throw or force her down to the ground, and did grasp her by the throat
Rape, and , ,.,.,,.. j j-j i-
Assault, m order to stifle her cries, and did raise her petticoats, and did lie
upon her, and did have carnal knowledge of her person, forcibly and against her will, and did ravish her : Oa otherwise, time and place last above libelled, you the said Dennis Connor did wickedly attack and assault the said Mary Houston, and did seize hold of her,«and did, with a stick, or with some other weapon to the prosecutor unknown, strike her two or more blows on or near her breast and stomach, or other part or parts of her person, and did put your hand under her petticoats, and upon her naked person, and did seize her by the throat to prevent her crying for assistance, and did throw or force her down to the ground ; and the said Mary Houston having succeeded in rising from the ground, you the said Dennis Connor did drag or pull her some short distance, and did again throw or force her down to the ground, and did grasp her by the throat to stifle her cries, and did raise her petticoats, and did lie upon her, and did attempt to have carnal know- ledge of her person, forcibly and against her will ; and this you the said Dennis Connor did, with intent to ravish the said Mary Houston, and to the injury of her person : Likeas (2.), time above libelled, at or near a part of the said road, situated in the parish of New Monk- land aforesaid, and distant 236, or thereby, yards from the farm-offices aforesaid, or at or near some other part of the said road, or of the said farm, situated in the said parish of New Monkland, to the prosecutor unknown, you the said Edward Morrison did, wickedly and feloniously, attack and assault ^gnes M'Callum or James, a widow, then and now or lately residing with Malcolm M'Callum, a weaver, then and now or lately residing at or near Annathill, in the parish of New Monkland aforesaid, and did seize hold of her, and did throw her down to the ground, and did fall or throw yourself upon her ; and she having suc- ceeded in getting up from the ground, you the said Edward Morrison did again seize hold of her, and did carry her to some short distance, and did again throw her down to the ground, and did lie upon her, and did raise or attempt to raise her petticoats, and did put your hand on her mouth, and did wrap a shawl around her head and mouth to stifle her cries for assistance, and did attempt to have carnal know- ledge of her person, forcibly and against her will ; and this you the said Edward Morrison did with intent to ravish the said Agnes M'Callum or James, and to the injury of her person : Likeas (3.) time above libelled, at or near the dwelling-house, situated at or near South Medrox aforesaid, then and now or lately occupied by the said
AND CIRCUIT COURTS OF JUSTICIARY. 7
William M'Lean senior, or at some other place or places at or near No. 2.
Spnth Medrox aforesaid, and in the said parish of New Monkland, to Q;o„™°and
the prosecutor unknown, you the said Dennis Connor and Edward Edward
Morrison did, both and each, or one or other of you, wickedly and fe- Momaon.
loniously, attack and assault William M'Lean junior, son of, and then Glasgow.
and now or lately residing with, the said James M'Lean senior, and ^^^g_ *
did, with your hands and feet, or with one or more of them, and with — ;
• 1 7 1 1 -11 Rape, and
a stick or bludgeon, or with some other weapon or weapons to the pro- Assault.
secutor unknown, inflict several severe blows on or near his forehead and other parts of his person, and did wrestle with him, and did throw or force him down to the ground, and did otherwise maltreat and abuse him ; by all which, or part thereof, he was cut and wounded, to the effusion of his blood and the injury of his person : Farther, James M'Lean junior, then and now or lately farm-servant to, and residing with, the said James M'Lean senior, having gone to the assistance of the said William M'Lean junior, you the said Dennis Connor and Ed- ward Morrison did, both and each, or one or other of you, time and place or places last above libelled, wickedly and feloniously attack and assault the said James M'Lean junior, and did seize hold of him, and did struggle with him,jind did throw or force him down to the ground, and did fall above him, and did, with your fists, repeatedly strike him on several parts of his person, and did otherwise maltreat and abuse him ; by all which, or part thereof, his face and eyes, or one or more of them, were scratched and wounded, all to the injury of his person : And you the said Edward Morrison being conscious of your guilt in the premises, did abscond and flee from justice.
The pannel Morrison having been fugitated for non- appearance, on the diet being called against Connor,
W. H. Thomson objected to the relevancy of the in- dictment, on two grojinds, 1st, in respect of the vague- ness with which the prosecutor described the locus where the rape was said to have been committed, in so far as it is stated that it was ' at or near a gate of entrance ' into a park or field upon the lands or farm of South ' Medrox aforesaid, commonly called the Kilnknowe ' Park, situated in the Parish of New Monkland afore- ' said, or at or near some other part of the said road, or ' of the said lands or farm, situated in the parish of New ' Monkland aforesaid, to the prosecutor unknown.' In detailing the alternative charge of assault, with intent to commit rape, the words ' or otherwise, place last ' above libelled,' were used ; this implied more than one
8 CASES BEFORE THE HIGH COURT
No. 2. locus had been previously libelled, which was the more
Connor and objectionable, inasmuch as, on looking back, the place
MoSn. last above libelled was the place on said farm ' to the
Glasgow. ' prosecutor unknown.' Either, therefore, the alterna-
^1848^*' *^v® charge was libelled with an undue degree of uncer-
■^ ^^ tainty, or there was more than one place intended to be
Assault, described in the charge of rape, in which case the libel
was deficient in not giving more precise notice to the
pannel.
Farther, the party alleged to have been injured was described to have been a servant ' of said James M'Lean ' senior, residing with him,' without any farther description of her. There had not been any James M'Lean previously mentioned in the indictment, the only M'Lean named as the occupier of the farm being designated ' William.' This was too uncertain a description of the party injured, inasmuch as, the word ' said' being superfluous, the in- sertion of it was calculated to mislead, and this the more especially, as .the prisoner being entitled to assume his innocence of a charge of this nature, he would thereby be misled as to the nature of the proof necessary to ad- duce in exculpation. Indeed, if so great a latitude were allowed, the prosecutor might adduce in support of his charge any Mary Houston, who was servant to some James M'Lean, living any where within the kingdom of Scotland.
Deas, for the prosecution, replied, that the words' objected to, ' place last above libelled,' were in the com- mon form used in such charges. In respect to the other objection, he wished time to consider it, and moved the Court to postpone the case till next day.
At the next calling, Deas stated that he would not press this indictment farther ; and on his motion, the Court deserted the diet against the pannel, pro loco et tempore.
AND CIRCUIT COURTS OP JUSTICIARY.
NORTH CIRCUIT.
PERTH.
Judges — The Lord Jdstice-Clerk and Lord Wood. oct. 12.
1848.
Her Majesty's Advocate — J. M. Bell A. D.
AGAINST
James Flinn and Margaret M'Donald or Brennan — Broun.
Culpable Homicide — Assadlt with Aggravations. — Circum- stances, in which the Court directed'"the Jury that, after the pro- secutor had withdrawn the charge of Culpable Homicide, they were not entitled to find the pannels guilty of assault, to the danger of life.
James Flinn and Margaret M'Donald or Brennan, No. 3. were accused of Culpable Homicide ; as also. Assault, FUnn Mid aggravated by being to the serious injury of the person, M^nlnaTd. and to the danger of life : ""p^rthT"
Oct. 12. 1848.
In so far as, upon the 8th day of April 1848, or on one or other of the days of that mouth, or of March imme&iately preceding, or of Homicide May immediately following, in or near Guthrie's Close, in or near *"=• Overgate Street of Dundee, you the said James Flinn and Margaret M'Donald or Brennan did, both and each, or one or other of you, wickedly and feloniously, attack and assault William M'Donald, then or lately before labourer or fish-dealer, residing at or near Hawkhill of Dundee, and did strike him with your fists on the head or other parts of his person, and did knock or force him to the ground, and did kick him on the belly, or other parts of his person ; and you the said Mar- garet M'Donald or Brennan did strike the said William M'Donald with an iron tray or server or other instrument to the prosecutor un- known, one or more blows on the head or other parts of his person ; and you the said James Flinn did, one or more times press your knees or limbs forcibly and severely on the back, or on the belly or other parts of the person of the said William M'Donald ; and you the said James Flinn and Margaret M'Donald or Brennan did, both and each.
10 CASES BEFORE THE HIGH COURT
No. 3. or one or other of you, otherwise maltreat and abuse the said William
James M'Donald ; by all which, or part thereof, the said-William M'Donald
Flinn and ' •' > r e i.- ve -nA in
Margaret was seriously injured in his person, to the danger ot nis lite, ann lu
M'Donald. consequence thereof died, on or about the night of the 9th, or morning
Perth. " of the 10th day of April foresaid, and was thup culpably bereaved of
^fg-^l^- life by you the said James Flinn and Margaret M'Donald or Brennan,
-rr-, — — — or one or other of you. Culpable •'
Tc! ^' It appeared from the evidence, that after the scuffle which was shewn to have taken place amongst the par- ties, in the course of which it was proved, that the pan- nel Flinn had thrown the deceased, and fallen upon him with his knees on the stomach ; and also, that the fe- male prisoner had dealt him a blow over the head with an iron tray, — that he had gone to a public house and partaken rather freely of whisky. The medical wit- nesses who had examined the body, on cross-examina- tion admitted, that drinking ardent spirits after receiving such injuries as those spoken to by the witnesses, would be calculated to excite inflammation, and occasion death, even in cases where otherwise no such result might have followed.
Upon this the Advocate-depute abandoned the charge of Culpable Homicide, and addressed the jury in support of the charge of Assault, as laid, with the aggravations.
Broun, for the pannels, contended, that as the public prosecutor had abandoned the charge of culpable homi- cide, the aggravations to the charge of assault that it was to the danger of life, must also be abandoned, in- asmuch, as the circumstance that death had followed within twenty-four hours, most clearly shewed either that the death was the result of the injuries received, or that it had resulted altogether from the state of intoxi- cation in which it was shewn the deceased was, after the time of the alleged injuries.
The Lord Justice-Clerk in summing up to the jury, said, that, since the charge of culpable homicide had been given up, so he thought must the aggravation to the charge of assault, that it was to the danger of life. It did not seem possible to sustain such an aggravation in
AND CIRCUIT COURTS OF JUSTICIARY. 1 1
a case where death had unquestionably resulted within No. 3. twenty-four hours after the injuries alleged, after the Fiinn and public prosecutor had, by abandoning the charge of M-oSd. culpable homicide, confessed that the death had not been perth. the result of the outrages charged. In such a case, it ^il'il"^' must either be culpable homicide, or common assault, "culpabiT because, where the death followed the injuries so Homicide, speedily, the principal charge ought to have been in- sisted in if the death could have been traced to the vio- lence charged against the pannels ; and if it could not, then there was equally no evidence in support of the aggravation. His Lordship added, that the Advocate- depute had done quite right in withdrawing the principal charge ; and that in these remarks he was not stating any general rule, but merely making observations on the particular evidence in this case, in which the ag- gravation of danger to life could not consistently be in- sisted in if the charge of culpable homicide was actually given up.
The Jury, by a large majority, found the pannels guilty of assault, to the serious injury of the person.
In respect of which verdict of assize, the pannels were sentenced to be imprisoned in the prison of Dundee for four calendar months.
12 CASES BEFORE THE HIGH COURT
Oct. 13. Judge— The Lord Justice-Clerk.
1848. "
John Bruce, Appellant— P. Eraser.
AGAINST
Thomas Duncan and John M'Lean, Respondents— (?. Young.
Appeal— Procedure.— Held that the Sheriff might competently pro- nounce sentence in a suit, at the instance of the Procurator-fiscal, to have a vicious dog destroyed, although no record was kept of the proceedings, and the sentence was pronounced in the absence of the defender.
No. 4. On the 13th of August 1846, the following Petition Duncan & and CoHiplaint was presented to the Sheriff of Perth-
^^ shire, by the respondents, as joint procurators-fiscal for
Oct. 13. the public interest, shewing —
1848. ^
Appeal. ( Xhat the petitioners have received information that John Bruce, ' farmer at Rosemount, has in his possession a large dog of a black or ' dark colour, which is vicious and dangerous to the lieges. That the ' said dog has been in the general practice of attacking and biting ' people who happened to be passing by the said farm of Rosemount ; ' and in particular, that the said dog did, upon the evening of Tuesday ' the twenty-third day of June last, or about that time, attack and ' bite, to the effusion of their blood, and dangerous injury of their per- ' sons, Thomas Reid, forester at St Martin's, William Wallace John- ' ston, gardener at ' St Martin's, and James M'Laren, servant to the ' Rev. John Park of St Martin's, and that upon the public road called ' the Den road, and about midway between the farm of St Martin's and ' Rosemount, while the said persons were going home. That the dog ' received no provocation to occasion such attack. That the said John ' Bruce has been frequently desired and required either to chain up ' the said dog, or to destroy it for the safety of the lieges, but he re- ' fuses so to do. That the petitioners, in consequence of the many ' complaints made to them regarding the viciousness of the said dog, ' and the public danger incurred by allowing it to go at large, did, on
AND CIRCUIT COURTS OF JUSTICIAEY. 13
' the twenty-seventli day of June last, by letter addressed to the said No. 4.
' John Bruce, require him to get the dog destroyed, but to this appli- Bruce «
' cation no attention was given. That it is therefore necessary for the M'Lean.
' safety of the public that the said dog be destroyed, under your Lord- „ , —
' ship's authority.' And therefore praying, that it might please his Oct. 1 3. Lordship ' to grant warrant for citing the said John Bruce to appear ^^^^'
' before you, to answer to this complaint, and on the facts therein Appeal. ' stated being admitted or proved, to grant warrant to officers of court ' to destroy the said dog, and to find the said John Bruce liable in the ' expenses of this application, and consequent procedure.'
Thereafter, on the 17th of August 1846, in obedience to the deliverance of the Sheriff-substitute on the fore- going petition and complaint, the appellant appeared in court, and verbally pleaded not guilty. After which, without any record, the Sheriff-substitute ordered proof of the facts alleged in the petition and complaint, and on the 24th March 1848, decerned against the appel- lant, in terms of the prayer of the petition. To which interlocutor the Sheriff adhered on appeal.
Against this decision, the appellant appealed to the Circuit Court, when,
Feaser argued on his behalf, that the whole pro- ceedings before the Sheriff were inept, in respect (1.), if the case was to be regarded as a criminal one, at the instance of the Procurator-fiscal, then the judgment was incompetent, it having been pronounced in the absence of the appellant ; and (2.), if the judgment was to be regarded as having been pronounced in a civil case, it was equally void, inasmuch as no record had been made up and closed therein, and the acts of sederunt regulating civil causes in Sheriff Courts, had been alto- gether disregarded.
Young, for the Respondents, answered, — This was a proceeding sui generis. It was an application to the Sheriff, as chief magistrate of the county, at the instance of the Procurator-fiscal, as conservator of the public safety. The Procurator-fiscal was not in the position of a party prosecuting a civil claim or vindicating a patri-
14 CASES BEFORE THE HIGH COURT
No. 4. menial risrht, and therefore the Act of Sederunt had no
Bruce «■ , ,
Duncan & apphcation. On the other hand, the personal presence
^ of the appellant during the proceedings was unnecessary,
1848.' there being no conclusion for punishment or censure
Appeal, against him.
The Lord Justice-Clerk pronounced the following interlocutor : —
' Perth, 13th October 1848. — The Lord Justice-Clerk ' having heard counsel for the parties, affirms the ' judgments of the Sheriff complained of ; dismisses ' the appeal : Finds the respondents entitled to the ' expenses of the appeal, as the same shall be taxed ' by the Clerk, and for which and the dues of extract, ' decerns.'
John Kemp, Writer, Perth, Duncan and M'Lean, Writers, Perth — Agents.
AND CIRCUIT COURTS OP JUSTICIARY. 15
Judqe — The Lord Justice-Clbbk.
Dundee and Union Whale Fishing Company, Dundee, Appellants — P. Fraser.
RossLYN Mavour and Alexander Paton, Mariners in Dundee, Respondents — Millar — Ogilvy.
Appeal — Competency — Expenses. — Held (overruling Wilson v. Cameron, Broun, vol. ii., 284) that an appeal from the Sheriff is comp.etent to the Circuit Court, before decerniture for the taxed ex- penses in the original suit.
This was an appeal against the judgment of the Sheriff No. s. of Forfarshire. ^"^^^L^
Millar, for the Respondents, objected to the compe- r^^c,, tency of the appeal, inasmuch as, although the Sheriff •°- Mavour. had pronounced a final interlocutor on the merits, there- ^^''th. by finding expenses due, and remitting to the auditor i848.' to tax the same and report, the appeal had been brought Appeal. before the expenses had been taxed and decerned for. The Act of Sederunt of 11th July 1839,^ according to the judicial construction put thereon in numerous cases, is decisive of the question, ( Wilson and Matheson v. Came- ron, Inverness, Sept. 20. 1844, Broun, vol. ii. p. 284, and cases there cited.) Indeed, to adopt any other con- struction, would tend unduly to multiply appeals, inas-
1 This act, which was passed for regulating forms of process in Sheriff Courts, declares, § 131, That, ' in civil causes, appeals to the ' next Circuit Court, in terms of the Act 20th Geo. II. chapter 43 ; ' 31st Geo. II. c. 42 ; 54th Geo. III. c. 67, are competent only after c a final judgment has been pronounced, and the matter of expenses ' has been disposed of, and where the subject-matter in the suit does ' not exceed in value Twenty-five pounds sterling.
16 CASES BEFORE THE HIGH COURT
Dundef & ^^^^ 3,s quGstions might arise on the auditor's report,
Union, which might form a separate ground of appeal, and so
Fishing Co. hang up the case for six months, which questions would
-, ^"^°"''' be heard and determined along with the merits of the
Oat. 13. suit, if the construction hitherto adopted was adhered to.
'^^^' The Lord Justice-Cleek said he was extremely an-
AppeaJ. xious to do nothing which would have the effect of dis- couraging appeals to the Circuit Court ; and after con- sulting with Lord Wood, who was presiding in the cri- minal Court, repelled the objection to the competency of the appeal, and pronounced the following interlocutor, after the appeal had been discussed on the merits : —
' Perth, iSth October 1848.— The Lord Justice-Clerk ' having heard counsel for the parties, dismisses the ap- ' peal : Finds the respondents Mavour and Alexander ' Paton entitled to their expenses in this appeal, as the ' same shall be taxed by the Clerk, and for which ex- ' penses, and the dues of extract, decerns.'
For the Appellants, — - Floweedew— For Paton, Shaw, M'Lauchlan & Reid, Writers, Dundee.— For Maronr, Galloway, Writer, Dundee.
AND CIRCUIT COURTS OP JUSTICIARY. If
HIGH COURT.
Present, The Lord Justice-Clerk.
Lords Mackenzie and Medwyn.
Her Majesty's Advocate — TAe Lord Advocate Buther/urd. — Crau/urd A.D.—Deas A.D J. M. Bell A.D.
AGAINST
James Gumming — Logan — A. Grahame.
Henrt Ranken — Moncreiff* — A. Grahame.
John Grant and Robert Hamilton — Logan— Lorimer.
Indictment — Statute — Conspiracy — Sedition — Relevancy. — Held, 1st, That it is not objectionable in an indictment under the Act lltb and 12th Vict. c. 12, to libel a previous design as evidenced by subsequent overt acts. 2d, That it is enough, in charging a con- spiracy, to state that the pannel had presided over a body ' formed ' for the illegal purposes libelled,' without charging him to have done so in pursuance of the common intent laid in the major. 3d, That the statute 11th and 12th Vict. c. 36, does not exclude the common law, and that it is competent to libel the same species facti as sedition at common law, as well as a contravention of the statute. 4th, That a conspiracy, to effect an alteration of the Constitution by force, is only an aggravated form of sedition at common law.
Evidence. — 1st, When it was proposed to shew a witness a pamphlet said to have been published by an association of which the pannels were members, — ruled that this was competent without first proving that the prisoners were present at the meeting where the matter was discussed, reserving to them the right of shewing they were not concerned therewith. 2d, Question whether language indicative of a conspiracy could be proved against a pannel, as having been used by
B
Nov. 7. 1848.
18 OASES BEFORE THE HIGH COURT
him on an occasion not mentioned in the libel. 3d, Held that it was competent to prove other expressions of a seditious nature, be-
. sides those charged in the libel, in support of the charge of sedition.- 4th, Held that a letter could not be read in support of the charge of conspiracy, libelled as commencing at a date subsequent to that of the letter. 5th, Held, that where a letter relating to the alleged common design had been directed to one of the pannels, and found in the possession of another, it was competent evidence against both, although it was not shewn that the writer was a conspirator, or that the contents were true, or that it was ever seen by the party to whom it was addressed.
Verdict. — Held, 1st, That it is unnecessary to libel intention in a charge of sedition ; and 2d, That when the Jury found the pannels guilty of sedition, in so far as they had used language ' calculated to ' excite popular disaffection, and resistance to lawful authority,' and explained that they had purposely omitted the word intended, which was also charged in the minor, that the verdict was good, and sen- tence might competently follow thereon.
No. 6. James Gumming, shoemaker, residing in Duncan Street, Gumming, Drummond Place, Edinburgh, was charged on Criminal
John Grant T,„ttp™o . and Others, ijeliers .
High Court. Nov. 7. That Albeit, by an Act passed in the eleventh year of Our reign,
^^^^- chapter twelve, entituled ' An Act for the~ better Security of the
Conspiracy ' Crown and Government of the United Kingdom,'' it is by section & Sedition. •'
^ The 11th Vict. cap. 12, after reciting, that ' by an act of the Parliament of Great Britain passed in the thirty-sixth year of the reign of His late Majesty King George the Third, intituled ' An act for the safety and preservation of His Majesty's person and ' Government against treasonable and seditious practices and attempts,' it was among other things enacted, that if any person or persons whatsoever, after the day of the passing of that act, during the natural life of His said Majesty, and until the end of the next session of Parliament after the demise of the crown, should, within the realm or without, compass, imagine, invent, devise, or intend death or de- struction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of His said Majesty, his heirs or successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm or of any other of His said Majesty's dominions or countries, or to levy war against His said Majesty, his heirs and successors.
AND CIRCUIT COURTS OF JUSTICIARY. 19
third of the said Act enacted, 'That, if any person whatsoever, after No. 6.
' the passing of this Act, shall, within the United Kingdom or c^^-
' without, compass, imagine, invent, devise, or intend to deprive or de- John Grant
' pose Our Most Gracious Lady the Queen, Her heirs and successors, °'°" Others.
High Court.
Nov. 7.
1848. ' within this realm, in order, by force or constramt, to compel him or ;
' them to change his or their measures or counsels, or in order to put ^°ge^'^*on
' any force or constraint upon or to intimidate or overawe both houses
' or either house of Parliament, or to move or stir any foreigner or
' stranger with force to invade this realm or any other of His said
' Majesty's dominions or countries under the obeisance of His said
' Majesty, his heirs and successors, and such compassings, imaginations,
' inventions, devices, or intentions, or any of them, should express,
' utter, or declare, by publishing any printing or writing, or by any
' overt act or deed, being legally convicted thereof, upon the oaths of
' two lawful and credible witnesses, upon trial, or otherwise convicted
' or attainted by due course of law, then every such person or persons
' so as aforesaid offending should be deemed, declared, and adjudged
' to be a traitor and traitors, and should suffer pains of death, and also
' lose and forfeit as in cases of high treason : And whereas by an act
' of Parliament passed in the fifty-seventh year of the same reign,
' eutituled ' An act to make perpetual certain parts of an act of the
" thirty-sixth year of His present Majesty, for the safety and preser-
" vation of His Majesty's person and Government against treasonable
" and seditious practices and attempts, aud for the safety and preser-
" vation of the person of His Royal Highness the Prince Regent
" against treasonable practices and attempts,' all the herein-before re-
' cited provisions of the said act of the thirty-sixth 'year of His said
' Majesty's reign, which relate to the heirs and successors of his said
' Majesty, the sovereigns of these realms, were made perpetual : And
' whereas doubts are entertained whether the provisions so made per-
' petual were by the last-recited act extended to Ireland : And where -
' as it is expedient to repeal all such of the provisions made perpetual
' by the last-recited act as do not relate to offences against the person
' of the sovereign, and to enact other provisions instead thereof ap -
' plicable to all parts of the United Kingdom, and to extend to Ireland
' such of the provisions of the said acts as are not hereby repealed :'
— enacts, Sect. 1, ' That from and after the passing of this act the pro-
' visions of the said act of the thirty -sixth year of the reign of Kin"
' George the Third, made perpetual by the said act of the fifty-seventh
' year of the same reign, and all the provisions of the last-mentioned
' act in relation thereto, save such of the same respectively as relate
' to the compassing, imagining, inventing, devising, or intending death
' or destruction, or any bodily harm tending to death or destruction,
& Sedition.
20 CASES BEFORE THE HIGH COURT
No. 6. ' from the style, honour, or royal name of the Imperial Crown of
James . jj^g United Kingdom, or of any other of Her Majesty's dominions
JohnS't ' and countries, or to levy war against Her Majesty, Her heirs, or
andOthera. t successors, within any part of the United Kingdom, in order, by
High Court.
Nov. 7. ■ ' "^
^°^^' ' maim or wounding, imprisonment or restraint of the person of the Conspiracy . jjgjrg and successors of His said Majesty King George the Third, and the expressing, uttering, or declaring of such compassings, imagma- tious, inventions, devices, or intentions, or any of them, shall be and the same are hereby repealed.'— Sect. 2, ' That such of the said recited provisons made perpetual by the said act of the fifty-seventh year of the reign of King George the Third as are not hereby repealed, shall ex- tend to and be in force in that part of the United Kingdom called Ire- land.'—Sect. 3, ' That if any person whatsoever, after the passing of this act shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our most gracious lady the Queen, her heirs or successors, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of Her Majesty's dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, in order by force or constraint to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both houses or either house of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other Her Majesty's dominions or countries under the obesiance of Her Majesty, her heirs or successors, and such compassings, ima- ginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, every person so oflfending shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be trans- ported beyond the seas for the term of his or her natural life, or for any term not less than seven years, or to be imprisoned for any term not exceeding two years, with or without hard labour, as the court shall direct.' — Sect. 4, ' That no person shall be prosecuted for any felony by virtue of this act in respect of such compassings, imagina- tions, inventions, devices, or intentions as aforesaid, in so far as the same are expressed, uttered, or declared by open and advised speak- ing only, unless information of such compassings, imaginations,' in- ventions, devices, and intentions, and of the words by which the same were expressed, uttered, or declared^ shall be given upon oath to one or more Justice or Justices of the Peace, or to any Sheriff or Steward, or Sheriff Substitute or Steward Substitute, in Scotland,
AND CIRCUIT COURTS OF JUSTICIARY. 21
force or constraint, to compel Her or them to change Her or their No, 6.
measures or counselSj or in order to pat any force or constraint npon, James
or in order to intimidate or overawe, both Houses or either House of jgjm (jj-ant
Parliament, or to move or stir any foreigner or stranger with force and Others.
to invade the United Kingdom, or any other Her Majesty's domi- HighCourt.
Nov. 7. 1848.
within six davs after such words shall have been spoken, and unless Conspiracy ■' & Sedition,
a warrant for the apprehension of the person by whom such words
shall have been spoken shall be issued within ten days next after such information shall have been given as aforesaid, and unless such warrant shall be issued within two years next after the passing of this act ; and that no person shall be convicted of any such corn- passings, imaginations, inventions, devices, or intentions as aforesaid, in so far as the same are expressed, uttered, or declared by open or advised speaking as aforesaid, except upon his own confession in open court, or unless the words so spoken shall be proved by two credible witnesses.' — Sect. 5, ' That it shall be lawful, in any in- dictment for any felony u6der this act, to charge against the offender any number of the matters, acts, or deeds by which such compass- ings, imaginations, inventions, devices, or intentions as aforesaid, or any of them, shall have been expressed, uttered, or declared.' — Sect. 7, ' That if the facts or matters alleged in an indictment for any felony under this act shall amount in law to treason, such indictment shall not by reason thereof be deemed void, erroneous, or defective ; and if the facts or matters proved on the trial of any person indicted for any felony nnder this act shall amount in law to treason, such person shall not by reason thereof be entitled to be acquitted of such felony; but no person tried for such felony shall be afterwards pro- secuted for treason upon the same facts.' — Sect. 9, ' That no person committed for trial in Scotland for any offence under this act shall be entitled to insist on liberation on bail, unless with consent of the public prosecutor, or by warrant of the High Court or Circuit Court of Justiciary, in such and the like manner and to the same effect as is provided by an act passed in the session of Parliament holden in the fifth and sixth years of the reign of His Majesty King George the Fourth, intituled ' An act to provide that persons accused of forgery in Scotland shall not be entitled to bail, unless in certain cases / but the trial of any person so committed, and whether libe- rated on bail or not, shall in all cases be proceeded with and brought to a conclusion under the like certification and conditions as if inti- mation to fix a diet for trial had been made to the public prosecutor in terms of an act passed in the Scottish Parliament in the year one thousand seven hundred and one, intituled ' An act for preventing wrongous imprisonment, and against undue delays in trials."
22 CASES BEFORE THE HIGH COURT
No. 6. I niona, or countries under the obeisance of Her Majesty, Her beirs Gumming, ' and successors, and such compassings, imaginations, inventions, de- JohnGrant « yices or intentionaj or any of them, shall express, utter, and declare, ^° ' by publishing any printing or writing, or by open and advised speak-
High Cpurt. I ijjg^ Qj. \yy a^jjy Qvert act or deed, every person so offending shall be 1848.' ' guilty of felony, and, being convicted thereof, shall be liable, at the ^ : ' discretion of the court, to be transported beyond the seas for the & Sedition. ' term of his or her natural life, or for any term not less than seven ' years, or to be imprisoned for any 4erm not exceeding two years, ' with or without hard labour, as the Court shall direct :' And albeit, by the laws of this and of every other well-governed realm, the wickedly and feloniously Conspiring to Effect an Alteration of the Laws and Constitution of the Realm by force and violence, or by arroed resistance to lawful authority ; As also Sedition, are crimes of an heinous nature, and severely punishable : yet tbue it is and of VEBITT, that the said James Camming is guilty of the statutory crime and felony above libelled, and of the crime of conspiracy at common law above libelled, and of the crime of sedition above libelled, or of one or more of the said crimes, actor, or art and part : In so far as, in the months of April, May, June, and July, 1848, or on one or other of them, the particular time being to the prosecutor unknown, the said James Cumming did, wickedly and feloniously, compass, imagine, in- vent, devise, or intend to levy war against Us, within that part of the United Kingdom called Scotland, in order by force or constraint to compel Us to change Our measures or counsels, or in order to put force and constraint upon, or in order to intimidate or overawe, both Houses or either House of Parliament j and such compassing, imagina- tion, invention, device, or intention, or one or more of them, the said James Cumming did, on or about the 28th day of June 1848, or on one or other of the days of that month, or of May immediately pre- ceding, or of July immediately following, and within or near a room or hall situated in or near Infirmary Street, in or near Edinburgh, commonly called the Trades' Hall, wickedly and feloniously, express, utter, and declare, by circulating or distributing, and thereby publish- ing, or causing to be circulated or distributed, and thereby published, a printed or written placard in the following or similar terms : — >
' NATIONAL GUARD.
' A Nation to be free, requires but Arms and a knowledge of ' their use.'
' A Public Meeting of the National Guard will be held in the ' Trades' Hall, Infirmary Street, on Wednesday, June 28, 1848, For ' the transaction of important business. Doors open at Eio-ht Chair ' to be taken at Half-past Eight. The various Clubs are respectfully
AND CIRCUIT COURTS OF JUSTICIARY. 23
« invited to attend. An opportunity will be given to those desirous of No. 6.
' joining. James
■' ° Gumming,
" It is the duty of all men to have arms." — Fohtescue. John Grant " It is the right and duty of all Freemen to have Arms of De-
fence and Peace."— Bracton. "^^No^^*'
" I request you to take care that the people be well Armed and 1848.
in readiness upon all occasions." — Queen Elizabeth. Conspiracy
" To attack the lowest among the people is to attack the whole * Sedition.
people." — De Lolme. " He is a fool who knows not that Swords were given to men
that none might be Slaves but such as know not how to use
them." — Algernon Sidney.
' One Penny will be charged at the Door to defray expenses. ' Alex. Elder, Printer, 243 High Street.'
and by then and there openly reading the said placard, or causing the same to be openly read in the presence and hearing of a great number of persons, all or many of them calling themselves Chartists, then and there convened and assembled as members of a body calling itself a National Guard, or for the formation or enrolment of such National Guard ; and the said James Gumming did, then and there, his said compassing, imagination, invention, device, or intention, or one or more of them, wickedly and feloniously, farther express, utter, and declare, by taking the chair and presiding over the proceedings of the said meeting of persons convened and assembled as aforesaid, being members of, or met for the formation or enrolment of the said National Guard ; and by then and there, or at some other time within the pe- riod above libelled, and at some other place to the prosecutor unknown, joining the said National Guard, and enrolling himself as a member, or otherwise becoming a member thereof ; the said body calling itself a National Guard being, and by him known to be, an illegal and dis- loyal body, formed or enrolled for the illegal and disloyal purposes of subverting by force and violence the laws and government of the realm, and of compelling by force and violence an alteration of the laws and constitution of the realm, and of procuring and using guns and pikes or other arms for the levying of war against Us within the realm, as aforesaid, in order by force or constraint to compel Us to change Our measures or counsels, and in order to put force or con- straint upon, and in order to intimidate or overawe, both Houses or either House of Parliament, or for one or more of the said illegal and disloyal purposes ; and it was within the said room or hall, and by all, or one or more, of the said persons convened and assembled as afore- said, then and there, openly proposed or resolved in presence and hearing of the said James Gumming, and with his sanction as chair-
24 CASES BEFORE THE HIGH COURT
No. 6. man, that the members of the said body callbg itself the National Gumming ^"^'*^ should provide themselves with guns and pikes or other arms, John Grant and it was intended, and by him known to be intended, to use the said and Others. ^^^^ ^^ j ^jj^gg ^j. ^^-^ei arms, for the illegal and disloyal purposes High Court, aforesaid, or one or more of them; and an individual then and there
ma. present, whose name is to the prosecutor unknown, did, then and there,
;; : and in presence and hearing of the said James Gumming, and with his
Conspiracy '^ ° ■, ■, i j^ e • i. i
& Sedition, sanction as chairman, propose and undertake to furnish or supply
guns, or guns and bayonets, to those ^who desired them ; and the said James Gumming did, as chairman aforesaid, express or indicate his approval and recommendation of such proposal and undertaking, and did state from the chair of the said meeting, that pikes would be sup- plied to those who preferred them ; and the said James Gamming did, on or about the 22d day of July 1848, or on one or other of the days of that month, and within or near the house in Duncan Street, Drum- mond Place, Edinburgh, then and now or lately occupied by him, or at some other time and place to the prosecutor unknown, his said com- passing, imagination, invention, device, or intention, or one or more of them, wickedly and feloniously, farther express, utter, and declare, by writing, subscribing, and addressing, to ' M' James Smith 27 Bmns- ' wick Street Glasgow,' a letter in the following or similar terms : —
' Edinburgh, July 22, 1848, ' 14 Duncan S'. Drummond Place. ' Dear Smith,
' I am in receipt of yours of the 13*, and take the earliest oppor- ' tunity of communicating the information desired. Although I might ' have informed you generally as to the state and spirit abroad imme- ' diately, I deferred writing until I could procure correct accounts ' from the members and officers of the various clubs and political ' bodies intending to arm. There are a great many clubs, in fact they ' are springing up nightly, there is a sort of club mania. The follow- ' ing are the names and numbers of the clubs which are increasing ' weekly: Mitchell Club, 56. Burn's Club, 25. Muir Club, 200. ' Baird and Hardie Club, 20. Gerald Club, 26. O'Connor Club, 12. ' Washington Club, 25. Emmet Club, I have not yet ascertained the ' number. Besides the Clubs there is the National Guard which ' numbers 500, making a total of 8C4 men besides the Emmet Club. ' The National Guard have given an order for 30 muskets with bay- ' onets, but a great many have provided themselves with arms ; those ' ordered are for those who pay in weekly contributions for that pnr- ' pose. Some of the Clubs have purchased a few muskets at £l each ' which have been shewn at the meetings. I do not know of more ' than 8 as yet ; but there is an arms fund in most of the Clubs for ' those who are not able to purchase them at once. When the Guard
AND CIRCUIT COURTS OF JUSTICIARY. 25
are supplfed with the arms ordered, I may say safely there will be No. 6. a 100 armed. Aa to the feeling which pervades the town, it is de- Cy^^f^e cidedly warlike at the present time ; the general topic of conversa- John Grant tion is arming, street fighting, &c. The Irish papers, the Felon par- and Others. ticularly, is read with avidity, and hailed with rapture and enthusi- High Court, asm. Never since I took any part in the movement, which is now iglg
nearly 20 years, was there such a strong feeling of resistance to the ' government. In 39 I was connected a defensive means associa- &"se^'ftion. ' tion, but the spirit evaporated before a single gun was subscribed ' for. It is very different now. The desire to procure and possess ' arms is gaing strength every day ; whether they would fight or not ' it is difficult to answer. I know that an Edinburgh mob generally ' fly if they are attacked ; but having arms and some idea how to make ' use of them inspire confidence. I shall be glad to hear how matters ' stand in Liverpool and Glasgow as soon as convenient. In the ' meantime,
' I am, Dear Sir,
' Your's sincerely,
' J. Cn.MMING.'
' Mr James Smith, ' Glasgow.'
and on the day, or soon after the day above libelled, as the date of the said letter, putting the said letter addressed as aforesaid, or causing the same to be put, into the Post-Office, Edinburgh, or into one or other of the Receiving-Offices of the Post-Office, Edinburgh, intending the said letter to be transmitted to, and to be received by, James Smith, now or lately residing in or near Rotten Row Street, Glasgow, and now or lately a porter or servant in the employment of Messrs Campbell and Cruden, now or lately commission-agents in or near Brunswick Street of Glasgow, or to be transmitted to, and received by, some other per- son of the name of James Smith to the prosecutor unknown ; and the said letter having been transmitted through the Post-Office to Glasgow, was, on or about the 24th day of July 1848, delivered by mistake to James Smyth, writer, or writer's clerk, son of, and now or lately re- siding with, William Smyth, writer in Glasgow, and now or lately carrying on business at or near No. 29 Brunswick Place or Brunswick Street, Glasgow, and now or lately residing in or near Abbotsford Place, in or near Glasgow, instead of being delivered to the person for whom it was by the said James Gumming intended ; and the said James Gumming did write, subscribe, address, and transmit, through the Post-Office as aforesaid, the said letter, with intent thereby to serve or promote the said illegal and disloyal purposes above libelled, or one or more of them, of himself and his associates in the said illegal and disloyal body calling itself a National Guard: Likeas, in the
26 CASES BEFORE THE HIGH COURT
No. 6. months of April, May, Jane, and July, 1848, above libelled, or one or Camming, ™°''® "^ *'i«™» ^^^ particular time being to the prosecutor unknown, John Grant and within or near the room or hall situated in or near Carrubber's and Others, qj^^^^ gj^j^ g^j.^^^,^ Edinburgh, commonly called Painters' Hall, for- High Court, merly occupied as a place of meeting by the Edinburgh Branch of the 1848.' National Chartist Association, and within or near the premises situ-
r — ated in or near the High Street of Edinburgh, then and now or lately
& Sedition occupied as the office of the North British Express newspaper, and within or near the room or hall abpve libelled in or near Infirmary Street aforesaid, and within the house in Duncan Street, Drummond Place, Edinburgh, then and now or lately occupied by him, or in one or more of the said places, or at some other time within the period above libelled, and at some other place, to the prosecutor unknown, the said James Gumming did, wickedly and feloniously, combine and con- spire with Henry Ranken, now or lately residing in or near Bishop's Close, High Street of Edinburgh ; Robert Hamilton, now or lately re- siding in or near Gilmore Street, Simon Square, Edinburgh ; John Grant, printer, now or lately residing in or near Munro's Close, Ca- nongate of Edinburgh ; Archibald Walker, now or lately residing in or near Bread Street, Edinburgh ; Peter Duncan, a mason, now or lately working in or near Dalkeith, in the county of Edinburgh, and now or lately residing in or near Edinburgh ; the said James Smith, now or lately residing in or near Rotten Row Street, Glasgow, or with one or more of them, and with other persons to the prosecutor un- known, calling themselves Chartists, to efiFect an alteration of the laws and constitution of the realm, and particularly of the constitution of the Commons' House of Parliament, the qualification for the franchise required by law in the election of members of Parliament, the duration of Parliaments, and other such changes in the laws and constitution of the realm; desired and aimed at by him and his associates, and gene- rally by the persons calling themselves Chartists ; and the said altera- tions of the laws and constitution of the realm he and his said associ- ates did combine and conspire to effect, not peaceably, lawfully, and loyally, but by force and violence, or by armed resistance to lawful authority ; and the said James Gumming did, on or about the 28th day day of June 1848, and within or near the room or hall above libelled, situated in or near Infirmary Street aforesaid, wickedly, feloniously, and seditiously, attend and take the chair, and preside over the pro- ceedings of the meeting above libelled of a great number of persons convened and assembled as above libelled, as members of or for the formation and enrolment of the said body calling itself a National Guard, the same being, and by him known to be, an illegal and dis- loyal body, formed or enrolled for the illegal and disloyal purposes above libelled, or one or more of them ; and he did, then and there circulate or distribute, or cause to be circulated or distributed and did
AND CIRCUIT COURTS OF JUSTICIARY. 27
openly read, or cause to be read, in the presence and hearing of the No. 6. said meeting, the printed or written placard above libelled ; and he did, q^^^^„ then and there, while in the chair of said meeting, hear, permit, and John Grant sanction, a proposal or resolutiou to the effect, that the members of ana Others. the Said National Guard should provide ^ themselves with guns and High Court, pikes or other arms, which were intended, and by him known to be 1848."
intended, to be used for the illegal and disloyal purposes above libelled, t; :
or one or more of them ; and he did, then and there, hear, permit, and & Sedition, sanction, a proposal and undertaking to furnish or supply guns, or guns and bayonets, to -those who desired them ; and the said James Gumming, in the presence and hearing of the said meeting, and in an- swer to a remark or question by some person to the prosecutor un- known, then and there present, whether those who wished pikes would be supplied with pikes, did, then and thelire, openly and seditiously, state or declare from^the chair, that pikes would be supplied to those who preferred them, or he did, then and there, use words of the same meaning and effect : And farther, the said James Gumming did, on or about the 22d day of July 1848, or on one or other of the days of that month, and within or near the house in Duncan Street above libelled, occupied by him, or at some other time and place to the pro- secutor unknown, wickedly, feloniously, and seditiously, write, sub- scribe, address, and transmit, through the Post-Office as above libelled, the letter above libelled, intending the same to be transmitted to, and received by, James Smith, porter or servant aforesaid, or some other person of the name of James Smith to the prosecutor unknown ; and the said letter was transmitted through the Post-OfiSce, and delivered by mistake as aforesaid, to the said James Smyth, writer, or writer's clerk aforesaid.
John Grant, Printer, Henry Ranken, Editor, or Joint Editor of the North British Express Newspaper, and Robert Hamilton, Tailor, were charged :
That Albeit, by the laws of this and of every other well-gove,rned realm, the wickedly and feloniously Conspiring to Effect an Alteration of the Laws and Gonstitution of the Realm, by force and violence, or by armed resistance to lawful authority ; as also. Sedition, are crimes of an heinous nature, and severely punishable : Yet true it is and OP VERITY, that you the said John Grant, Henry Ranken, and Robert Hamilton are, all and each, or one or more of you, guilty of the crimes above libelled, or of one or other of them, actors or actor, or art and part : In so far as, in the months of March, April, May, June, and July, 1848i or one or more of them, the particular date being to the prosecutor unknown, and within or near a room or hall in or near Carrubber's close, High street of Edinburgh, commonly called ' Pain-
28 CASES BEFORE THE HIGH COURT
No. 6. ter's Hall,' formerly occupied as a place of meeting by the Edinburgh
James Branch of the National Chartist Association, and within or near the
J^hn Grant premises in or near the High street of Edinburgh, now or lately occu-
and Others. pied.by the publishers of the North British Express newspaper, and
High Court, within or near the room or hall commonly called the Trades' Hall, m
Nov. 7. or near Infirmary street, Edinburgh, and within or near a room or hall
'"*"• in or near Adam square, Edinburgh, and on or near the Calton Hill,
Conspiracy Edinburgh, or at one or more of the said places, or at some other place & aedition. ° ' '■ ii, -j t i,
in or near Edinburgh to the prosecutor unknown, you the said John
Grant, Henry Ranken, and Eobert Hamilton did, all and each, or one or more of you, wickedly and feloniously, combine or conspire with each other, and with Archibald "Walker, now or lately residing in or near Bread street of Edinburgh; Peter Duncan, a mason, now or lately working at or near Dalkeith, in the county of Edinburgh, now or lately residing in or near Edinburgh ; James Gumming, shoemaker, now or lately residing in or near Duncan street, Drummond place of Edinburgh; or with one or more of them, and with other persons to the prosecutor unknown, calling themselves Chartists, to effect an alteration of the laws and constitution of the realm, and particularly of the constitution of the Commons' House of Parliament, the quali- fication for the franchise required by law in the election of members of Parliament, the duration of Parliaments, and other such changes in the laws andj^constitution of the realm, desired and aimed at by you and your associates, and generally by the persons calling themselves Char- tists ; and the said alterations of the laws and constitution of the realm you and your said associates did combine and conspire to effect, not peaceably, lawfully, and loyally, but by force and violence, or by armed resistance to lawful authority ; and you the said John Grant, Henry Kanken, and Robert Hamilton did, all and each, or one or more of you, on or about the 25th day of April 1848, or ou one or other of the days of tha;t Inonth, or of March immediately pre- ceding, or of May immediately following, and within or near the pre- mises aforesaid, occupied by the publishers of the North British Express, or at one or other of the places above libelled ; and again on or about the 28th day of April 1848, or on one or other of the days of that month, or of March immediately preceding, or of May immediately following, and within or near the room or hall situated in Adam Square aforesaid, or at one or other of the places above libelled, wickedly, feloniously, and seditiously, resolve and agree to form, or cause and procure to be formed, a body, to be called a National Guard, and to be provided with arms, to be used for the illegal and seditious purpose of effecting, by force and violence, or by armed re- sistance to lawful authority, the said alterations of the laws and con- stitution of the realm, or one or more of them ; and you did, all and each, or one or more of you, become a member of the said body calling
AND CIRCUIT COURTS OP JUSTICIARY. 29
itself the National Guard, knowing the same to be an illegal body, fJo. 6. formed for the said illegal and seditious purposes : Further, you the Ja™es said John Grant, Henry Ranken, and Robert Hamilton did, on or John (Jran't about the 12th day of June 1848, or on one or other of the days of that andOthers^ month, or of May immediately preceding, or of July immediately fol- High Court, lowing, attend a public meeting of a great number of persons convened ■ jo^'o
and assembled on Bruntsfield Links, near Edinburgh, by or in conse ;
quence of a printed , placard, headed 'Great Demonstration of the ^g^jtion. ' Trades of Edinburgh and Leith to refute the statement of Lord John ' Russell, that the people were not wanting any reform, and to ex- ' press their determination not to rest satisfied until the principles of ' the people's Charter become the Law of the Land.' And you, the said John Grant did, then and there, take the chair of, and preside over, the proceedings of the said meeting, and you did, then and there, advise and exhort the persons there convened and assembled as afore- said to organise themselves into Clubs and Sections for the more effec- tual prosecution of the objects of the Chartist body : And you the said Henry Ranken did, then and there, address the said meeting con- vened and assembled as aforesaid, and you did, then and there, openly and seditiously, move a resolution, in the following or similar terms : — ' We the inhabitants of Edinburgh and Leith, in public meeting as- ' sembled, are satisfied of the lamentable ignorance, or wicked, mali- ' cious falsehood of Lord John Russell, in stating that the people ' of this country do not want reform of any sort whatever ; and we ' therefore declare, that it is our intention not to rest satisfied, nor to ' cease agitating, until the people's Charter is the law of the land, ' being fully convinced that justice can neither be obtained nor pre- ' served unless the people are put in possession of their rights, which ' are clearly laid down in that document : We are farther resolved to ' exert ourselves to the utmost of our power to promulgate our prin- ' ciples in every quarter of the land, and thereby create a feeling that ' will ultimately compel our oppressors to relinquish their grasp, which ' we are satisfied will be ere long ; for we are determined that while ' there is misery for the inmates of the cottage, there shall be no peace ' for the inmates of the hall ;' and in support of the said resolution, you the said Henry Ranken did, then and there, openly and seditiously, and in presence of the said meeting, say, that ' it was a well-known ' fact that the police, the special constables, and the military, were ' tainted with the principles of the Chartists ; but although these men ' were true, they would not forget the advance of enlightenment ' among the working classes, that the science of chemistry had entered ' the workshop, and that working men could provide themselves with ' as deadly weapons as Warner's long range ; and if it was to be a ' struggle for life and death, if it was to be destruction, then you hoped ' and trusted that the working men would only be true to themselves,
30 CASES BEFORE THE HIGH COURT
No. 6. ' and only abstain from all acts of aggression until they were roused CumnTinff ' V ^^^ oppression of their oppressors, and when they began the work, John Grant ' may they do it .well;' and you the said Henry Ranken did, then and Others. ^^^^ there, urge and advise the persons convened and assembled as High Court- aforesaid at the said meeting, to organise themselves into clubs and 184*8.' sections for the more efltectual prosecution of the objects of the Chartist ~ — : — ~ body; and you did, further, openly and seditiously, and in presence of & Sedition, the said meeting, say, ' If the leaders of the people are to be incarce- f rated, if the people are to suffer this tamely, if those who have an « interest in keeping you down feel that you will quietly submit, then « they are secure ; but if the working men look to themselves, and if • they look to those who place themselves in the front of the fray, if ' they look to those who are willing to brave every danger, then I say i the working men ought to consider what means should be taken to « protect these men : Let the property of the country be hostages in ' the hands of the people for the safety of the leaders of the people ;' and again you did further say, ' It has been said that the French are ' inventive, but that the British have this faculty, that upon all the ' French inventions they improve. Should the authorities drive the ' people into a revolution, then I hope the people will improve upon ' the French invention of a republic ;' or you did, on the occasion above libelled, use words of the import and effect above set forth : And you the said Robert Hamilton did, time and place last above libelled, ad- dress the said meeting, and you did, then and there, openly and sedi- tiously, and in the presence of the said meeting, urge aud advise the persons then and there convened ,and assembled as aforesaid, ' to orga- ' nise themselves into clubs and sections, and to provide themselves ' with guns and bayonets,' in order to carry into effect the said objects of yourself and your associates; and you did then and there say, ' For the love of God prepare yourselves with guns and bayonets, as ' the day is not far distant when you may require them ;' or you did, then and there, use words of the import and effect above set forth : And yon the said John Grant did, then and there, as Chairman of the said meeting, sanction the said resolution, and did put the same to the meeting and did declare it to be passed or adopted ; And you did, as Chairman aforesaid, hear, permit, and sanction the seditious speeches above libelled of the said Henry Ranken and Robert Hamilton, and you did not call them to order, or stop or attempt to stop them, or ex- press any dissent from, or disapprobation of, the said speeches : And your conduct and speech as aforesaid in the Chair of the said meeting were seditious, and were intended and calculated to excite popular disaffection, commotion, and violence, and resistance to lawful autho- rity : FuBTHBR, on or about the 19th day of June 1848, or on one or other of the days of that month, or of May immediately preceding, or of July immediately following, and within or near Waterloo Rooms,
AND CIRCUIT COURTS OP JUSTICIARY. 31
near the Regent Bridge, Edinburgh, you the said Henry Ranken did, No. 6. openly and seditiously, and in the presence of a large number of per- q„^^^„„ sons, all or many of them calling themselves Chartists, then and there John Grant assembled, urge and recommend the meeting to ' organise into clubs Others. ' and sections,' for the more effectual prosecution of the objects of the High Court. Chartist body, and ' to provide themselves with arms in case they i848.'
might require to use them ;' or you did, then and there, use words of :
the import and effect above set forth : Further, on or about the 24th & Sedition, day of July 1848, or on one or other of the day« of that month, or of June immediately preceding, or of August immediately following, and on or near the Calton Hill, Edinburgh, you the said Henry Ranken and Robert Hamilton did, both and each, or one or other of you, attend a public meeting of persons then and there convened and assembled ; and you the said Henry Ranken did, then and there, address the said meeting, and you did, then and there, openly and seditiously, and in presence of the said meeting, say, in reference to the illegal and cri- minal proceedings of certain evil-disposed persons in Ireland, that you considered that ' the people of Ireland were justified in their determi- ' nation to resist to the death the oligarchy who ruled them,' and you did express your hope or prayer that ' the God of battles would smile ' on the oppressed, and enable them to improve the victory they were ' sure to win ;' and you the said Henry Ranken did further, then and there, say, that ' If the power of Great Britain was brought to bear ' against the people of Ireland, then the people of Scotland must ' endeavour to distract the attention of the Government ;' and you did, then and there, recommend the organisation of clubs and sections, for the more effectual prosecution of the objects of the Chartist body, and you did state that certain clubs had been already formed in Edin- burgh, for the promotion of the objects desired by the Chartist body, and you did name certain of these clubs, as the ' Washington Club,' the ' Mitchell Club,' the ' Faugh-a-Balloch Club,' the ' Muir Club,' the ' Wallace Club,' the ' William Tell Club,' and others ; and you did urge the meeting to join one or other of the said clubs, or you did, then and there, use language of the import and effect above set forth : And you the said Robert Hamilton did, time and place last above libelled, address the said meeting, and you did, then and there, openly . and seditiously, and in presence of the said meeting, say, that the Irish people would require help, — that pikes were easily made, — and that the young and spirited men of Scotland should go to Ireland and help the Irish people ; and that at one time you would have been satisfied with the Charter as the law of the land, but that now you would accept of nothing else than a republic, and that they would soon obtain one, or you did, then and there, use words of the import and effect above set forth ; and the whole or part of the language above set forth as
32 CASES BEFORE THE HIGH COURT
No. 6. used by you the said John Orant, Henry Ranken, and Robert Hamil- Cumming ^°^ respectively, aa above libelled, was intended and calculated to John Grant excite popular disaffection, commotion, and violence, and resistance to
"^i^^- lawful authority. High Court- Nov. 7.
^"''^- On the diet against Gumming being called, Looan ob- & SeSn. jected to the relevancy, on two grounds, 1st, In respect to the statutory offence, that^ no overt acts were suf- ficiently set forth. The object of the late statute was twofold, — 1st, To subject a party, in respect of certain acts, to a charge of felony only, instead of treason ; and, 2d, To constitute advised speaking sufiicient to complete the offence. The acts charged against the pannel were high treason under 36th Geo. III. c. 7, which was re- pealed by the late statute. Treason could only be proved by overt acts (Hume, vol. i. p. 514), and there was a ne- cessity in all cases of treason to libel the overt acts specifically in connection with the alleged treasonable intent. That had not been done in the case before the Court. It might be conceded, for a-rgument's sake, that sufficient had been stated for constituting an offence under the statute, if properly laid ; but the prosecutor, after alleging a substantive antecedent design, as far back as the month of April, proceeded, in libelling the overt acts, at once to 28th June, without alleging that this was done in pursuance of the intent before mentioned.
The Lord Justice-Clerk quoted the indictment in Thistlewood's case, to show that such strictness as was contended for on behalf of the pannel was unknowTi in English practice.
Logan departed fi-om the objection, which was ac- cordingly repelled.
He then objected to the first charge as laid at common law for Conspiracy. The mode adopted was too vague. It ought to have been alleged in the minor that the va- rious acts set forth in support of the charge, had been done or said in pursuance of the common design charged in the major.
AND CIRCUIT COURTS OP JUSTICIARY. 33
The Lord Justice-Clerk — It would have been better ^°^^ had the mode you now suggest been adopted ; but on the Camming,
i , . . ,. .... 1 1 , ,1 1 1 JohnGrant
seventh page of this indictment, it is stated that the body and others. calling itself the National Guard, and over a meeting of High court, which the pannel is said to have presided, ' was known ^sTs!' • by him to be an illegal and disloyal body, formed and conspiracy ' enrolled for the illegal and disloyal purposes above libel- ^ s^'^'*'""- ' led, or one or more of them.' Surely that is sufficient.
The objection was repelled.
He then objected that the common law charges were incompetent. But for the late statute, the acts charged against the pannel would have amounted to high treason ; and that statute having reduced the offence to one of felony, it must now be tried exclusively as a contraven- tion of the act.
The Court thought this 'objection so important, that, * on the suggestion of the Lord Advocate, with the con- currence of the prisoner's Counsel, they delayed the case for two days, in order that the case might, together with those of Grant, Ranken, and Hamilton, be heard before the whole Bench. The Lord Justice-Clerk in the meantime directed the attention of the Crown to the mode in which it was stated that Gumming had incurred guilt, by wickedly and feloniously expressing, uttering, and declaring by ' writing, subscribing, and addressing' to ' Mr James Smith, 27 Brunswick Street, Glasgow, a letter,' &c. He wished to know whether this was intended to be a charge of publishing under the late statute, or whe- ther it was only intended as an overt act of siedition. If intended to support a charge under the statute, could such charge be siipported without averring publication expressly ? Was the letter merely intended as a narra- tive of the compassings charged, or was it intended to be proved as an overt act ? He also inquired whether the Crown considered the charge of conspiracy, as laid at common law, to be anything different from sedition. If it was not different, the Crown could have no interest to
34 CASES BEFORE THE HIGH COURT
No. 6. press it. If different, doubts might arise as to its com-
Cumming, petencj, inasmuch as if such compassmgs and imagmmgs
and Other! as thosc charged against the pannels should be sufficiently
HighCour^. proved by overt acts, the charge might amount to high
^lail' treason, notwithstanding the recent statute. There was
Conspiracy HO precedent for any indictment in such a form for
& Sedition, ggjji^jojj merely. In all previous indictments it was
merely alleged that the acts done had been calculated
and intended to alienate the minds of the subjects or
produce disaffection, &c. ; but the present charge went a
great deal further, in charging a compassing to effect an
alteration of the laws and constitution of the realm by
force and violence. The question became very important
in considering the application of Sir William Rae's Act,
whereby the punishment of transportation was abolished
in cases of sedition, inasmuch as, if this was held to be
something different, the Crown might ask for a sentence
of transportation ?
The following Minute was then given in by the pannel :
MINUTE FOK JAMES CtTMMING.
The pannel, and the counsel for the pannel, request the Court to delay the diet for this trial till Thursday, the 9th of November 1848, inclusive, and consent that the intervening period shall not be reckoned within the days of running letters of intimation under the Act 1701, chap. 6. (Signed) James Cumming.
A. S. Logan.
Akch. Gbahame.
AND CIRCUIT COURTS OF JUSTICIARY. 35
Present, The Lord JusticIe-Clbrk, ig^g *
Lords Mackenzie, Moncreipf, Medwyn, Cookburn, and Wood.
The diet having been again called against the ,pannel No. 6. Gumming, and the other pannels having also surrendered, Cumming,
Logan argued, that it was incompetent to try the and'others. offences charged against the pannels, except under the High Court. recent statute. It was important to observe what were ^jg^'s!' the charges made ■ against them. It was alleged that conspiracy they had conspired to effect an alteration Of the law and ^ ^^'^•''°"- constitution by force and violence, to intimidate and overawe Parliament ; that they had assisted to combine, and abetted an illegal force, called the National Guard ; the substance of the whole being, that the object was to effect a change of the government by force. The minor was the same, with one exception, on both of the com- mon law and statutory charges, the only difference being that under the common law it was not charged that Cumming had joined the National Guard. That was not material to the present discussion, as the other of- fences alleged against the pannels were relevant to have constituted treason under the common law of Scotland, under the 36th Geo. III. ; and were also relevant to con- stitute felony under the late act. Erskine, B. 4, tit. 4, sect. 20 ; Mackenzie on Criminal Law, JHigh Treason, tit. 6; Act 1st Pari. Car. II., chap. 5, vol, ii., p. 138, small edition. These were also identical with the treason- able offence in the law of England, under the statute of Edward III. Lu'ders on High Treason, p. 137 ; State Trials, vol. vii., p. 961. The meaning of compassing is there defined as being ' to attempt war.'
Lo'rd Justice-Clerk. — Attempting was doubtless treason in Scotland. Is compassing, conspiring, and at- tempting in any way different from compassing or con- spiring?
36 CASES BEFORE THE HIGH COURT
No. 6. Logan. — The difference was, that before the Union Cumming, compassing and conspiring would in Scotland have been and others, high treason, but in England could only have-been proved High Court, by overt act, done in pursuance thereof. Under the 1st ms.' section, 7th Anne, c. 21, the jurisdiction of the Court of Conspiracy Justiciary was ousted, and the tribunal of the Grand Jury & Sedition. ^^ established, and the right of peremptory challenge given ; but it could not be pretended that, because of that statute, compassing ceased to be per se a treason in the law of Scotland. It was incompetent to try it as evidenced by overt acts, as an offence of sedition at com- mon law ; Hume, vol. i., 553. There was no instance between 1709 and 1795 in which it had been held that species facti, such as here set forth, had been punishable otherwise than as treason. This would meet the objec- tion which might be stated from the 6th section of 36th Geo. III.J, inasmuch as before that statute passed, it must have been considered that the law of treason, introduced by the 7th of Anne ,had merged all subordinate charges. LoED Justice-Clerk. — Do you state that this would not have been a seditious offence 'in England before the passing of 36th Geo. Ill ? — And referred to the case of Walker.
Logan. — In the case of Walker, which led to the passing of that act, the words used were similar to those in the present indictment, State Trials, vol. xxiii. p. 1062. This, however, was no proof that the common law of Scotland would have regarded it in tbe same light, as that was altogether dissimilar to the common law of England. Further, it was necessary that each offence should be tried under its appropriate nomen juris ; if it was treason, it was nothing else. The statute 36th Geo. III. did not alter the character of the offence, it only created that which was before merely evidence of treason into a sub- stantive treason ; East's Pleas of the Crown, pp. 62, 63 ; case of Hardie, p. 278. The second section of the late statute had no such reservation as was contained in the 6th section of 6th Geo. III., and that statute being repealed
AND CIRCUIT COURTS OF JUSTICIARY. 37
the reservation therein contained was repealed also. No. 6 But, farther, the statute of Victoria contains provisions cumming, for the beneiit of parties accused under it. Under the fnS Oriie™' 4th section information must have been given within six Hi^h Court"' days after the offence was committed, and a warrant ^j'jj^'/" issued within ten days thereafter, otherwise the party conspiracy could iiot be tried under the act ; besides which, the ^ Sediticn. party was entitled-to the benefit of criminal letters, as though intimation had been given under the Act 1701. This was not an auxiliary act, but a direct and positive declaration of the legislature, as to what the offence should be considered ; how and when it shotild be tried, and to what privileges the pannels would be entitled.
It was not, however, in the present case necessary to push the argument so far. Under the reservation of 36th Geo. III. the prosecutor would not have been entitled to try both under the statute and the common law. He must have made his election : and it was equally incompetent to try in both ways under this statute.
The Lord Advocate and Mr Craufurd. — ^The case must be considered under three heads : —
1. The common law of Scotland.
2. As affected by the English Treason Acts ; and,.
3. Under the present statute.
1. The charge of conspiring, as here laid, woul& have been an offence at common law. The common law reaches all criminal acts falling within the range of pre- cedent or known principle. They were quite willing, for the sake of argument, but to that extent only, to assume that, in Scotland as in England, all felonies merged in treason. This, however, was in truth an intermediate crime, not amounting to the statutory offence on the one hand, but yet properly distinguishable from sedition on the other. The compassing, which was now no longer treason, was the act of an individual mind, and was com- plete so soon as the intent was formed. To constitute the crime of conspiracy there must be a common intent, a combination by a plurality of persons, and it must,
38 CASES BEFORE THE HIGH COURT
No. 6. therefore, be considered as diiFerent, both from the com-
cumming, passlng which, under the late act, was made felony, and
andoaers! from Sedition as an individual act.
Highconrt! The LoED Justice-Clebk.— Do you maintain that ^°48!' under a charge of sedition, it would be incompetent to
conapiracy libel a Combining for seditious purposes ?
&.Sedition. Ceaufukd. — It is not necessary to push the argument that length. The charge here is not so laid, but yet it is well laid, and if the combination is proved as stated, that is more than mere personal sedition. There never yet was a period when such conspiracy would not fer *ehave been a crime at common law.
2. The Act 36th Geo. III. made no difference. Under it the common law was specially reserved ; but suppose the common law to have been excluded under that act, and suppose that the act had not been made perpetual, but had expired, as was originally contemplated, within a year, it could not then be contended that the common law, which had been in abeyance during that period, would not have revived. Nothing can exclude the com- mon law but special statute, or identity between the crime charged and an existing treason. If the act charged be no longer treason, then, even admitting the doctrine of merging, that would not help the argument of the panneH inasmuch as it must be a living treason, not a dead one, which could have that effect-
3. The recent statute repeals the 36th Geo. III., and, by such repeal, restored the common law, as to all corn- passings not made substantive treasons under the statute of Her present Majesty. There is, therefore, no longer need for any reservation of the common law, which reaches this crime, and all such crimes by its own native vigour. The common law was never excluded, except by positive words ; Hume, vol. ii. p. 37. This has been acted upon in many cases undet Lord Ellenborough's Act; case ^i Alexander Mackenzie, High Court, Dec. 31. 1843, Broun, vol. i., 495, The result of adopting, the view urged on the other side would be^ that between the
AND CIRCUIT COURTS 0F JUSTICIARY. 39
act of Anne and the act of Geo. III. such conspiracy, as j^^^^ then charged against the pannel, would have been no Cummmg, offence at all, inasmuch as the pannel says that the. and others, statute of Anne prevented it being indicted at common High Court. law, and yet he admits that it was not treason under the i848. statute of Edward III. There could be no doubt that it conspiracy might have been so tried as well before as after the 36th Geo. III. How then could it be contendeid, that there was anything in the present statute to prevent^the Public Prosecutor froin libelling the offence at common law, -which, as he had shewn, had been always in force, when the crime was not treason, and when no special statute excluded it ?
The Lord Justice-Clerk. — Is it not a strong" thing to say that you are entitled to disregard all the privi- leges given to the pannel under the 4th and 9th sections, as to the time within which the information must be given — the warrant for apprehension issued — and the party brought to trial ?
Ceaufurd. — If I am right that the crime of conspi- racy is not identical with the statutory offence, then the pannel can suffer no injury. More especially, as we do not seek to enforce against him, in respect of this charge, the high penalties imposed by the statute.
Lord Justice-Clerk. — Do you say you do not intend to prove the compassing charged, as a contravention of the statute by means of conspiracy ?
Lord Wood. — Under the 3d section, the compassings, imaginations, &c. which are declared to be felony under the act, are said to be completed if the party shall ex- press, utter, or declare the same by publishing any print- ing or writing, or by open advised speaking, or by any overt act or deed ; do you contend that th6 privileges given in the 4th section, as contradistinguished from that given in the 9th, is confined to cases where the party is alleged to have contravened the act by dpen and advised speaking only? Is not the fair construction of the act, that as every mode of committing the offence is declared
40 CASES BEFORE THE HIGH COURT
No. 6. to be a felony, and to be punished with the same penalty,
James '' ^ i i i n
Curaraing,. that the protection in the 4th section should equally ex- and others, tend to all cascs, more especially as this is the plain con- High Court, struction of the privilege given in the 9th section.
1848.' The Lord Advocate. — ^There are two answers ; the Conspiracy fi^st, that if I do not prosecute under the statute, I am & Sedition, jjq^ bound to give the privileges conferred by the statute ; and, secondly, that on the plain construction of the sta- tute, these privileges are only given where it is alleged that the statute has been contravened by ' open and ad- vised speaking' only. And there was good reason for this, inasmuch as a prisoner might not be enabled to make a proper defence, in respect of words uttered at a public meeting, if the charge had been allowed to remain over his head until the circumstances under which they were uttered were forgot by parties who might other- wise have shewn them to have been innocently used.
MoNCREiFF replied — The points are few, but impor- tant. Our position is, that the charge of conspiring to effect an alteration of the laws and constitution of the realm, by reason of the statute, merges in the felony, just as before the late enactment it would have merged in trea- son, except for the reservation under the 36th Geo. III. which, whatever the object might otherwise have been, is equivalent to a statutory declaration that, but for the reservation, the common law would have been ousted. By the 18th section of the Treaty of Union, recited in the statute of Anne, it was provided, ' That the laws which ' concern public right, policy and civil government, maybe ' made the same throughout the whole united kingdom.' And by the subsequent statute, it was enacted, ' That such ' crimes and offences which are high treason or mispri- ' sion of high treason within England, shall be construed, ' adjudged and taken to be high treason and misprision of ' "high treason within Scotland ; and that from henceforth, * no crimes or offences shall be high treason or mispri- ' sion of high treason within Scotland, but those that are ' high treason or misprision of high treason in England.'
AND CIRCUIT COURTS OF JUSTICIARY. 41
The statute overruled the common law, in so far as it No. 6.
James
was inconsistent therewith. — Lord Holt, in Sir John Cumming, Friend's case. State Trials, vol. x. p. 599. and others.
There was no instance of a party having been indicted High Court. for conspiracy to levy war as a separate offence before ]848.' the 36th Geo. III. ; it must therefore have been con- conspiracy sidered prior to that statute, if proved by overt acts, as treason, or, if it could not be so proved, as sedition only. Notwithstanding the rebellions, Hume makes no men- tion of any common law charges of this kind, and it was feir to assume that nothing of the kind was ever con- sidered competent at that time.
The doctrine of merger goes much farther than seems to have been supposed. In the case of Mackinlay, the point was not decided as applicable to the law of Scot- land, although on a fair import of the opinions delivered, it must be assumed that the doctrine was allowed in cases of treason. It extends to cases, however, other than those of treason, the principle being that where particular species facti are, by means of a statute, raised into a higher offence, it is incompetent to prove them under a lower charge. The Act of Victoria was a British Statute : it had used English terms unknown to the law of Scotland, and we must go to English law for an in- terpretation of their meaning, By that law conspiracy would be misdemeanour only, and even conceding the ar- gument on the other side that the common law had re- vived in consequence of the repeal of the 36th Geo. III., the only effect would be that, inasmuch as under the present act it was declared to be a felony, and as it was an undoubted principle of English law, that if an act amounted to felony, it could not be charged as a mis- demeanour, the common law charges were incompetent here. Mr Justice BuUer's direction to the Jury in Isaac's ease, Russell on Crimes, vol. ii. p. 550.
The question was, was the statute exclusive to any extent — ^if so, it was exclusive to every extent. There were provisions in favour of the pannels, and the Lord
42 CASES BEFORE THE HIGH COURT
No. 6. Advocate could not neutralize the enactments of the
Cummfng, Legislature in their favour, under pretence that he did
fnd o?w not seek to have a high penalty imposed upon them,
High Court- as the pannel might prefer those protections which
^848?' might enable him to prove his innocence, or exempt
Conspiracy him from! trial altogether, rather than be charged with
& Sedition. ^ subordinate offence infferring a minor punishment, —
in respect of which, those privileges were not accorded
to him.
LoED Justice-Gleek. — It would have been very de- sirable to have had more time to deliberate, before giv- ing judgment in this very important case ; but, as the pannel is entitled to all the privileges of the act 1701, under the 9th section of the late statute, the Court cannot delay giving their decision upon the points which have been urged in his favour.
I feel the greatest difficulty in supporting the relevancy of the charges objected to, and but &r the great differ- ence of my opinion from the rest of the Court, I should have expressed myself more decidedly against the l-ele- vancy of the two charges laid at common law.
I think the Lord Advocate made a ^eat mistake as to the purport of the argument on behalf of the pannel, and this mistake consistesd, in my opinion, in not observ- ing that the minor of all the charges were essentially the same. It is true, that at first the argument which has now been submitted to the Court, was confined to the charge of sedition only, but on my suggestion, it has to-day been extended to both the charges at common law.
I wish to guard myself against agreeing in the doctrine which, it has been said, has been involved in this argu- ment, that the offences here charged were not cogniz- able by the common law before the 36th of Geo. III., I have no doubt before the passing of that act they were illegal. That statute made them treason, but in a crinlinal charge, the nature of the facts alleged against the prisoner is alone important. No doubt compass-
AND CIECUIT COURTS OF JDSTICIARY. 43
ing to levy war against the Queen was made treason No. e. by 36th Geo. III., as made perpetual in the subsequent Cumming, year ; but this shews that, at common law, the rule was and others. as I have stated it, namely, that intention must be High Court. shewn by overt acts in all criminal offences, and that ^°^'il' according to the criminality of the overt acts proved, conspiracy the law would infer a criminal intention. The act ^ Sedition. of Geo. III. contains a clause which expressly enables the prosecutor to try at common law for the overt acts, which were always illegal, as well as for the intention then first made a crime under the statute. This, is easily understood. It was natural, under the circumstances, to find such a reservation, inasmuch as on the one hand it would have been extremely difficult to have proved in- tention without overt acts, so, on the other, it might ap- pear on the evidence, that the only intention the law could ascribe to the prisoner was a treasonable one, whereby an indictment for a less offence might have been rendered abortive. It is however conceded, that no such reservation exists in the late statute, nor could it be expected, for as the intentions dealt with by the statute are now no longer substantive treasons, the rea- son for such reservation no longer exists.
The late statute is entitled, ' an act for the better ' security of the Crown and Government of the United ' Kingdom,' and I think that the safe rule is to con^ sider it as the whole code of law, applicable to the offences of which it treats. The general declaration of the statute of Union, the nature of the Union itself, and the whole scope and object of legislation since that period, shew that such an act, defining the criminality of politi- cal offences, containing provisions as to the mode of pro- secution, must be taken as a legislative declaration of what shall be the full and only remedy at both ends of the island. This statute, after a recital of previous statutes, and after repealing the same, in so far as they relate to compassing, proceeds, in the third section, to declare that such compassing shall be felony. I can-
44 CASES BEFORE THE HIGH COURT
No. 6. not separate these two provisions, more especially as
Cummb^g, this section is identical, with the single difference of add-
fndOftCTs! ing the words,' ' on her or royal name,' with the words
High Court, employed in the 36th of Geo. III. The statute then
^848^" prescribes how the offences contemplated shall be
Conspiracy punishcd, aM restricts the powers of the prosecutor as
& Sedition. iQ ^]je tjme within which he is to prefer his instance, and
thereafter restricts the competency of trial within the
period allowed to persons after intimation has been given
under the act 1701.
In the face of such provisions, tending so materially to the benefit of the pannel, I cannot bring myself to believe, that when the legislature enacted this statute, it was ever contemplated that it was competent to the Public Prosecutor to evade all these advantages, by pro- ceeding as for a different offence at common law.
If I could, looking at the whole scope of this indict- ment, find the charge of conspiracy or sedition different in substance or matter of charge from the alleged statutory offence, my difficulties would not arise ; but surely a charge of compassing to levy war against the Queen would be supported by proof of a conspiracy so to do. There never was such a conspiracy, however abortive, without a compassing. The same acts which would shew conspiracy, if they proved anything, would also establish the compassing. In the first charge it is stated that the pannel was ' convened as member,' &c. of the alleged illegal body, associated for the illegal purposes therein set forth. Now, what does that charge import ? It has not been disputed, that, with the ex- ception, not the variance, that a joining of the national guard is not charged in the minor under the common law charge, the charges are otherwise identical. It is manifest that one minor would have done for both. I have the greatest diflBculty, then, in holding that any different offence can be ascribed in the major. If it was so, I must tell the Jury, when I come to sum up, that although they shall say that the parties are innocent of
AND CIRCUIT COURTS OF JUSTICIARY. 45
the facts charged against them under the statute, they No. e. may yet be guilty of the same facts under the charge Cumming, at common law. To my mind such a state of things and other", is impossible. It is plainly no difference that others High Court. were with him (the pannel), inasmuch as he is alleged ^j°8''48^' to have acted in concert with others in the contravention conspiracy of the statute ; and perhaps the worst acts set forth * Sedition. against him, in respect thereof, are his approval and adoption of the illegal conduct of others with whom he was associated.
A point has been raised during the discussion, on which I am anxious to have the assistance of the Court, namely, that the conspiracy here set forth is not sedition. To that doctrine 1 entirely demur. I think it sedition of the worst kind, but still sedition. I have never for one moment thought, since the passing of Sir William Rae's act, that transportation is still competent for acts like those charged in the present indictment. Here the Public Prosecutor ought to have charged ' sedition, 'especially when committed by compassing,' &c. In 1793, under the general charge of sedition, the pannels had sentence, after proof, for seditious conspiring ; but should the jury return a verdict of not guilty of sedition, but guilty of conspiracy, if we pronounce our interlocu- tor sustaining the relevancy of both charges, we must ■ hold this to be a good and consistent verdict. I should like, for my assistance in directing the jury, to hear your Lordships' sentiments on this point.
It is for these reasons that I am for sustaining the objections which have been made to the relevancy of the present indictment. In so doing, I wish it to be under- stood, that I by no means go on any general notion that the intervention of a statute abrogates the common law in every case. I go upon the peculiarities of this statute itself, the object for which it was framed, and the cir- cumstances under which it passed ; and giving due re- gard to these, I am of opinion that the Legislature has thereby definitively declared, that wherever the acts
46 CASES BEFORE THE HIGH COURT
N^^6^. charged against a pannel, in fair construction of law, Gumming, amount to a contravention of the statute, the only com- and oth^. petent proceedings are those prescribed by the statute, High Court, with all the privileges it gives to the parties accused.
m8^" Lord Mackenzie. — There are two charges objected Conspiracy to, couspiracy aud sedition, both charges at common & Sedition, i^^ n jg jjQ^. gg^jjj ^jjg^t tjjgge a,re not crimes at common
law themselves. But it is said that they are excluded by the statute of Victoria, as containing matter that is in the statutory charge. Now, I think it does contain such matter. But does that warrant the exclusion of the com- mon law charges ? It is said to do so. Why ? Because, it comes in place of 36th Geo. III., which would have excluded it. Now, to this I see two answers : —
First, the act 36th of Geo. III. did not exclude the common law : it had a clause expressly reserving it.
Secondly, if the act of George Third did exclude the common law, yet the mention of it in the act of Victoria, as coming in place of that of George Third, did not mean that it was to keep up this effect of that statute. It re- pealed, in the proper enacting clause, the act of George the Third, and without any qualification. It therefore took away the treasons of the act of George Third, and substi- tuted a felony. Now, supposing that the treasons of the statute of George the Third excluded the common law, why should this exclusion remain, when they were taken ' away, and a statutory felony substituted, felony having no such quality of exclusion as treason has ? The one is taken away with its qualities; the other substituted with its qualities. If the accessory qualities of treason had been continued, it would have greatly defeated the purposes of the act, one of which was to facilitate the trial of these things. I therefore set aside that expres- sion. Secondly, but it is further said, that the statute of Victoria in itself has provisions inferring the exclusion of the common law. I am not satisfied with that argument. The act Victoria is an act which imposes severe pains on certain acts, which, at common law, were, as sedition.
AND CIRCUIT COURTS OF JUSTrc<ARY. 47
punishable only by two years imprisonment at most. No. 6.
. 11 Tit • n James
This statute makes them liable to transportation for Gumming, life. It also brings in accessories after the fact, not liable aadothera. at common law, and takes away the right of bail from HighComrt. the accused. On the other hand, it gives certain privi- ^gla^' leges to those prosecuted under it. The chief of these, conspiracy which relates to the charge of advised speaking, is of value, ^ Sedition. and there are some other privileges of less moment. But I cannot see why these may not be given to persons pro- secuted under the statute, without inferring that the common Jaw is excluded in prosecutions of all the acts of crime stated in the statute. I think the statute free from any absurdity, in the view that the common law was open, as before, with its lighter pains, and less severe procedure ; but that if the statute is insisted in, the privi- leges thereby given must be granted. I cannot therefore supply the place of a clause of exclusion in the statute. And, on the whole, I feel bound to repel the objections. Lord Moncreiff. — I could have wished for more time. This indictment contains three charges — one is for contravention of the statute, founded on the third section.; That is a high and penal statute, and there is no objection to the charge founded thereon. But the indictment goes on to state second and third charges. The second charge I think different in some respects from the first. The question we have to decide is, whether this second charge is relevant as the law stands. No one doubts, that, apart from the statute, it would have been good. It is admitted that the species facti set forth constituted a crime before the Union. By that act, no doubt, the law of Scotland, so far as respects treasonable offences, was overruled. The 36th Geo. III. makes acts similar to those now charged a substantive treason, and contains a special clause, reserving the com- petency of a common law charge, thereby preventing any merger. That statute is now repealed," and with it the reservation also. But it is important, in considering the questions which have been raised, to remember, that
48 CASES BEFORE THE HIGH COURT
No. 6. when they were treason, the common law was preserved,
James ■' ' - j • •
Gumming, In the rccent statute there are substituted provisions.
and Others. But there WRs HO necessitj for any reservation of the
High Court, common law, inasmuch as there was no treason which 1848. " was to have the effects of creating a merger. I never
Conspiracy heard that because a statute applies, the common law is thereby necessarily ousted. The act of Victoria is a highly penal one. The common law charge does not lead to the same inference as the statutory one, and I think the second charge different from the first. Conspiring is not neces- sarily the same thing with compassing and imagining. I think the law contemplates a special case, and, inas- much as this libel contains no statement of open and ad- vised speaking, I think the protections therein given cannot legally be claimed by the pannels as of right.
Lord Medwyn. — The indictment contains three charges ; the objection is to the second and third. I agree with Lord Moncreiff that the charges are somewhat difierent. There may be compassing without conspiracy. There may also be conspiracy without sedition, though in this case I think it sedition of an aggravated kind ; the question is. Can the common law be excluded ? I do not think the unplication from the statute is sufficiently strong to have that effect. It is, no doubt, now a common law offence. By 36th George Third, the common law right is preserved. By the present act, the repeal of 36th George Third was effected, as there was no longer any treason into which the sedition could merge. It has been said that the statute is the whole code of law ap- plicable to the offence. The clause by advised speaking, although somewhat difficult to separate from the rest of the statute, still does not appear to me sufficient to ex- clude the common law on a charge like the present, when that is not charged. It may be proper, where the sta- tute is founded on, to give .the protection it aflFords, but that, to my mind, is not enough to exclude a common law charge like the present.
Lord Cockburn.— There are two questions for our
AND CIRCUIT COURTS OP JUSTICIARY. 49
decision, — the one is, whether treason absorbs all subor- No. e.
James
dinate charges ; conceding that to be so, it has no appli- Cumming, cation to the present case, inasmuch as this is not said and other" . to be treason. The other is on 36th George Third, as High court. construed in pari materia with the recent statute. There ^{'sis.' is no question that a conspiracy like this is a crime. I conspiracy cannot doubt this. The point for determination is, has * ^®'i''"'"- the common law been taken away by the late statute, so that the only competent punishment must be under the statute, and under the privileges given to the pannel therein, so that he has a right to insist on being tried under the statute, and within the statutory period. Now, there is here no express abrogation of the common law. It is said to be abolished by implication. It must, how- ever, be an unavoidable and necessary implication, to have such an effect, and I cannot see whence this arises. Nothing is more common than alternatively charging a 9ontravention of a statute along with a common law charge, and if one minor will serve several majors, the prosecutor is entitled so to frame his indictment. Even if the charges were identical, I should not think exclu^ sion of the common law necessarily followed ; but, inas- much as these facts are not entirely the same, and the charges are not the same, I do not think the latter made a crime under the statute {reads statute). There must, under the statute, be a levying of war, which is not said here. There is not, therefore, any necessary implication to exclude the common law, and as I can guess the intention from words only, I do not think they have so expressed themselves as to justify us in reject- ing this charge. In answer to the question of privilege, it is sufficient to say that he will be exempted from the pains of the statute if found guilty of the common law charge only.
Lord Wood. — I feel great difficulty in giving an opinion. There are three charges. The one statutory, one conspiracy, which I think the same as sedition, and a third sedition. I think there may be many charges
50 CASES BEFORE THE HIGH COURT
No. 6. of thoise acts set forth so drawn as not to infer a con- cummlng, travention of the statute. I think the charges in sub- fndo?hTs! stance is the same, notwithstanding the variation in High Court. Haajor. I have no doubt, therefore, that it is a rele- ^°848^' vant case under the statute. If I am asked to hold Conspiracy" *^^* *^^ chargcs couspiracy and sedition are to be sus- & Sedition, tained because they are different, I should say the ob- jection would be good, because I conceive them to be substantially one with the statutory offence. But the question is, can you have both? Up to 36th Geo. III. these acts were indictable by common law, then they were created into treason, and the less offence merged, but the common law was preserved even by that statute. These could not otherwise have been prosecuted at common law, on account of the merger. But the sta- tute preserved the common law. Then came the present statute. If the 36th Geo. III. had merely expired the common law would have revived ; and the same conse- quence follows from its repeat They are now no longer treason, but felony under the recent statute, and, but for other and special considerations, I would have had no difficulty in saying they might still be prosecuted as at common law, when the reservation was no longer neces- sary, in consequence of the repeal of the statute. But the difficulty is in respect of the special provision in the recent enactment, that it is to enact other penalties in lieu of treason, and which at first sight seems to constitute it the only code of law on the subject. But I incline to hold that the only meaning of this is to say they are not to be treason but felony. I am not sure that this is enough, by way of inference, to abrogate the common law ; although we are pressed with the fourth section, containing so many and valuable protections for the benefit of the pannel.
But I think with Lord Mackenzie that the protection is given only to the case of prosecution for open and advised speaking, now made a felony under the statute. But if you proceed under common law offence, I do not
AND CIRCUIT COURTS OP JUSTICIARY. 51
think that the inference is sufficient to exclude us from No. 6. sustaining the relevancy in that form, although, no doubt, cumming, the effect is to deprive the accused of those protections, fna oaeS! On these grounds I concur with the majority of the Hieh Court. Court. Xil-
Conspiracy & Sedition.
Present,
Nov, 13. The Lord Justice-Clerk, '**'•
Lords MoNCRteipp and Medwyn.
During the trial of the pannels Grant, Ranken, and Hamilton, Peter Anderson, one of the witnesses, for the Crown, deponed, — That, at a meeting of the Edinburgh Chartist Association, a letter was received from a person named M'Kay, applying for aid to publish a pamphlet, a draft of which was enclosed. On a printed pamphlet being shewn to him, for the purpose of identification, it was objected on behalf of the pannels, that before this could be done, the Crown must prove that the prisoners were present on the occasion referred to.
The Court held, that as the object was to prove pub- lication of a pamphlet, under the sanction of an associa- tion, of which the prisoners had been shewn to be mem- bers, the evidence could not be objected to at that stage of the proceedings. It would be open to the prisoners to shew that it had no application as against them, by proving that they were not concerned in it.
John Bikings, another witness, was asked whether he had heard Hamilton advocate the use of arms at the meeting held on the Calton Hill, whereupon
Logan, for the pannel, objected that this evidence was incompetent, the special occasion when the words were said to have been uttered not having been libelled. There was no analogy between the latitude allowed to a
52 Cases before the high court
1^0.6. prisoner in conducting his defence, and the strictness and others, required to be observed by the Crown. To support an High Court, indictment, the prosecutor was bound to prove particular , ^ms'.^' facts, and that they took place on the occasions specified. ConsEiracy The objcct of scrviug the indictment before-hand, and & Sedition, ^j^g rcquisitious of criminal pleading, were all intended to guard the pannel against surprise on the trial. Here the general statement was, that the pannels had unlaw- fully conspired, and in support of that allegation, parti- cular species facti were set forth. The prosecutor, not content with proving what he had alleged, sought to esta- blish words used on an occasion of which he had given no warning.
Craufubd said, it was proposed to lead this evidence, not with reference to a particular charge of sedition by spoken words, but to support the general charge of con- spiracy. It was competent to prove that the prisoner used any words within the period libelled, indicating his knowledge of the nature of the institution, its intention, and objects. It would be relevant to prove that these words were addressed to an individual, and it can be no less relevant to prove them when uttered at a public meeting. He was also entitled, he maintained, to anti- cipate a remark which might be made in defence, that the prisoner did. not know the objects for which the in- stitution was formed.
MoNCEEiFF answered, there were certain public meet- ings specifically libelled, at which seditious words were alleged to have been uttered. The pannels were en- titled to hold that the occasions and words set forth in the indictment, were those alone on which the prosecutor intended to rely. It might lead to the greatest injustice if it was allowed that other meetings and other words than those libelled might be proved. It was incompe- tent to prove intention of conspiracy, without giving notice of the occasion in respect of which the proof was offered.
AND CIRCUIT COURTS OF JUSTICIARY. 53
No.fi. John Grant
The question was not farther pressed. and others,
The Court, however, stated that it must not be con- High Court.
... ,. , 1 11 , . . Nov. 13,
sidered as a ruhng by them, that language intimating i848, an intention of conspiracy could not be proved, though Conspiracy the specific occasion on which it was used was not stated in the libel.
James Brownlee, a sergeant of police, having deponed to having been present at the meeting at Bruntsfield Links, at which Ranken spoke and moved the first re- solution, was asked whether he had advised the people to get arms, in order to procure the charter ; whereupon,
MoNCREiFF objected, that when an indictment for se- dition libelled particular expressions in proof of the crime, it was incompetent to prove any general state- ment not included in the libel.
Craufurd argued that the expressions in the libel formed a distinct charge. It was not sought to adduce this evidence to prove any other act of sedition than those set forth. It was, however, a proper and compe- tent proceeding that evidence of other expressions in the same speech should be laid before the jury, in sup- port of the charge of sedition, or deduced from the par- ticular expressions mentioned in the indictment.
The Coiirt ruled that the evidence was admissable.
It was proposed to ask Andrew Oliver Smith, clerk in the County Police Office, to read a printed placard. No. 3 of Process, purporting to be headed ' National ' Guard,' and intimating a meeting of the National Guard on 28th June 1848 ; whereupon it was objected by the counsel for the pannels, that this was not evidence against any of the prisoners, until it had been previously shewn that they were in some way connected with the National Guard.
The Lord Justice-Cleek. — You may be able to dis- connect yourselves from the National Guard, but, inas- much as it is proved that the subject of a National Guard was discussed at the meeting of the Chartist As- sociation,, on the 25th and 28th of April, at both of
54 CASES BEFORE THE HIGH COURT
1*0.6. which Ranken and Hamilton were present, and inas-
and others, much as it is clearly shewn that they were connected
High Court, with the Association on the 28th of June, it is clearly
^il'ilf' competent that the placard should be read as evidence.
Conspiracy agalust them.
& Sedition. Thereafter it was proposed to read a letter, bearing to. be dated, ' Glasgow, April' 30. 1845,' and subscribed ' James Smith, Sub. Sec'
Logan objected to the document being read. It could only be produced with a view to make out con- spiracy, but, inasmuch as the conspiracy libelled was not alleged to extend farther back than March 1S48, it was clearly incompetent to adduce evidence of what took place three years before in support of the charge. The Court held that the letter could not be read. It wa? proposed to read a letter, No. 6, bearing to be dated ' Edinburgh, 2 Causewayside, Thursday morning, ' 11th May 1848,' and to be subscribed 'John Ferguson, ' Archibald Walker.' It appeared that the letter was put into the Post Office directed to Ranken, and that it contained a request that it should be communicated to Gumming afterwards, and that it was found in the hands of Gumming open.
MoNCRiEFF, for Ranken, objected, that this letter could not be read, inasmuch as it was not shown that it had ever come into Ranken's hands.
The LoED Jtjstice-Clerk — If it did go to Gumming by mistake, and never reached the party to whom it was directed, it would be competent for you to prove the fact ; but as this letter was put into the Post-office directed to Ranken, the Gourt cannot presume that there was a mis- carriage iu the Post Office, more especially as the letter itself bears that it was to be communicated to Gumming, in whose hands it was found.
MoNCRiEFF — It was uccessary to prove Ranken's knowledge of the letter. The writer was not accused as a co-conspirator, and, therefore, without farther evidence, it was impossible to allow it to be read as evidence of a
AND CIRCUIT COURTS OF JUSTICIARY. 55
conspiracy in which Ranken was said to be involved, al- j^j^^"'^^:^^^^ though the writer was not. Besides which, the letter and others. was clearly private : and it could not be evidence that a High Court.
11. .1 M • 1 1 Nov. 13.
party had written a private letter, until it was shewn that i848. the prisoner had seen it. Put the case that the letter Conspiracy had contained a disclosure of some nefarious design, al- together unconnected with the alleged Chartist conspi- racy, that clearly would not be evidence. Erskine, in the case of Hardy, 1794, State Trials, vol. xxiv. p. 448, properly drew the distinction between what an agent does, and what he says has been done. This letter only professed to be a narrative of what others had done, and the writer was not shown to have been a co-conspirator. Had he been so, according to the principle stated by Erskine in the case referred to, the letter would not have been evidence against the party to whom it was addressed.
The Lord Advocate replied, that although it had not been shown that Ferguson, the writer of the letter, was in any way conaected with the conspiracy, it had been shown that Walker, who also subscribed it, and Gum- ming, to whom it was communicated, were both members of the Chartist Committee, and it could not be supposed that it would reach Cumming's hands, except through the medium of the prisoner Ranken. This circumstance caused the case to differ essentially from that of Hardy, where the writer only was said to have been a conspira- tor, and not the receiver. He also quoted Lord Mon- creiff 's opinion in the case of the Cotton Spinners.
LoED Medwyn. — The document in Hardy's case con- tained only the relation that certain songs were sung, written by one person to another, who was unconcerned with the crime charged. It was not a letter written from one conspirator to another. Here Walker is proved to have been a conspirator as much as Ranken. The important point is, that at the end of the letter there is a statement that the letter is to be handed to Cumming, and the letter is found in Cumming's hands
56 CASES BEFORE THE HIGH COURT
johnGrant '^P^"" ^^^ presumption is, that it came to the person and Others, entitled to opcu it, was opened, and shown to Gumming. HighCourf Ey'en if Ranken had never seen the letter, I think it is
Nov. 13. .
1H48. good evidence. I consider this case greatly ditterent Conspiracy from that of Hardj.
Lord Moncreiff. — My impression as to the case of Hardy was different. I suspect yet it was the case of a letter from one conspirator to "another, and that it was admitted. I see no objection to this letter. It is signed by Walker, and may be considered his as much as Fer- guson's It is addressed to Ranken, and to be communi- cated to another alleged conspirator. It is said for the pannel that he did not see the letter. This may be in the first instance supposed. But, suppose he did not see it at first, he might afterwards see it, therefore it is not to be assumed that he never saw it. It is said that it contains a narrative only. But it is put in as proving a conspiracy, and a narrative of things said to have been done may be a most important item of evidence.
Lord Justice-Clerk. — It is always satisfactory when, in giving a decision, we find the opinions of other Judges coinciding with our own. But when there has been great difference in the decisions delivered, we are better situated to decide after the lapse of fifty years, than when the point rose suddenly, and two of the most emi- nent of the English Judges differed from the majority of the Court. I have often considered the case of Hardy, and I find it often alluded to by others. Giving due weight to the opinion of the majority, I think it went on a mis- apprehension. In conspiracy, the purpose and intention is what is to be proved. The acts of those concerned, though unknown to the prisoners, may be good evidence of the design. Thus, in the case of Brandreth, it was permitted to prove acts done in one part of England, to establish the design entertained in common with those in another. In the same way a statement of the parti- culars at a meeting is evidence to prove the intention ; also (as in this case) a letter expressing ^ approbation of
AND CIRCUIT COURTS OF JUSTICIARY. -■ 57
tlie procedure. The narrative of the progress, of the No. e.
^T . 1 ^ .„,,„,. . . r. ,1 John Grant
National Guard, ot the ieeang in its lavour, all go to and others, show the purpose as much as if the facts were true. It HighCoun. is part of the folly of such means that people delude ^ "848. " themselves. But, does a statement that may be false, conspiracy avowing vs^hat the purpose is, less prove that purpose be- " '*"'°' cause it occurs in a pretended narrative of what has not happened ? Therefore, I think it was a misapprehension to say that the document in Hardy's case was not evi- dence because ,it was not proved that the songs were sung. The fact of making the narrative (though false) may prove the purpose of the conspirators. As to the objection that the letter was not received, I lay that aside as of no importance. It is good evidence, just as statements made by the conspirators here would affect him when in London. He may take away the effect by subsequent explanation, but in the mean time, it must be received. A person once joining in a conspiracy may be answerable for much which he did not intend. Assum- ing then that the letter was not seen by Ranken, I think it good evidence. My brother, Lord MoncreifF, is under a mistake in supposing that the document was admitted in the discussion in Hardy's case, to which reference has been made. Another document was received, as to which the facts were thought to be different.
Lord Moncreiff. — I see it was so. But I concur on principle in receiving this document.
The Lord Justice-Clerk in proceeding to charge the Jury, said — There were three remarks which, in the out- set, he felt himself bound to make. The first was, that it had been urged by the Crown, and not the less strong- ly, from the intention having been disclaimed that it was of great importance from the character of the times to put down the doctrine that, under any circumstances, any body of men for the attainment of any political object, were entitled to use violence. Whatever may be the importance at any particular juncture of repress-
58 CASES BEFORE THE HIGH COURT
No. 6, ing such a doctrine, it must be remembered that such a
John Grant . , . . , . , . . ^ au '
and Others. Consideration cannot weigh ili determining as to the High Court, guilt or innocence of the pannels. Though the conse- 1848.' quences of a verdict of not guilty might be fearful, from Conspiracy a misapprehension of the grounds on which that verdict B itiou. proceeded, yet if you cannot, from the evidence laid before you, find the pannels guilty, you are bound to declare them innocent. The second remark applies to an argu- ment yet more illegitimate, and very mischievous, which was pressed on the part of the pannels, that you should hesitate to deliver a verdict of guilty, although such might be your conviction on your oaths, from the notion that such a verdict would create discontent in some por- tion of the community ; or, that it might have the effect of elevating the accused into the importance of political nlartyrs. If the crimes should be proved to your satis- faction, you will be violating your oaths if you fail to give a conscientious verdict, because you antipicate inex- pedient results. The Jury must, from the facts laid be- fore them, say whether the pannels are guilty. And I may add, that I never knew a verdict returned after con- scientious deliberation, that did not carry its due weight. Neither have I found, that when the prosecution is just, that a verdict of guilty was attended with the results pointed to by one of the counsel. It was urged upon you, that great allowance was to be made for the feelings of men, who, unable to raise themselves above the bur- dens and privations of daily toil, could not submit to the sight of greater means being in the possession of the upper classes, whom they might think not more worthy than themselves, and that great indulgence on that score was to be made for any violence of language which may be proved against the pannels. Now, while I quite con- cur in the feeling that great latitude may be taken in the free discussion of public events and of political changes, yet I know no more mischievous doctrine than to claim toleration for violence as to the differences in the social conditions of mankind. Such violence is, in
AND CIRCUIT COURTS OP JUSTICIARY. 59
trut^, the outbreaks of the evil heart of man, rebelling No.s. against the decrees of Providence as to his lot and situa- ana others. tion in life, which lead him, instead of bearing such dis- High Court. pensations with Christian resignation, to attempt to in- is^g/ volve all society in confusion and misery, in the vain hope conspiracy that he may benefit by the spoil of others, whom, from ^ Sedition. such selfish feelings, he is ready to plunge into distress. This is the plain truth as to all such topics as I was sorry to hear descanted upon by one of the counsel. But, really such declamation was quite beside the present case. We have fortunately no evidence that the pannel, for whom such mischievous views were urged, had been actu- ated by any such dangerous and wicked and unchristian feelings. All that is alleged against him, or can be col- lected from the case as insisted in by the Crown, is simply seditious language and proceedings, in the course of ad- vocating and attempting ordinary seditious objects, tend- ing to create insurrection. I am one very ready to make the utmost allowance for the language used by men at political meetings, who know very little, from their pre- vious pursuits, of the import of what they are uttering, and have no definite objects in view. But, while great 'freedom may be claimed in such a case, that is a very different thing indeed from the attempt to justify, or palliate, or excuse, violence of language and incendiary declamation, because, forsooth, those who, by the decrees of Providence, must labour for their bread, cannot sub- mit to the inequalities of human society, and cannot re- frain from incitements to general confusion, in the hope of bettering their own condition. The latter feeling is, I again say, the rebellion of the evil heart of man against the dispensations of Providence, and is the very wicked- ness which the spirit of evil excites, as the most prolific sources of fearful crime. Fortunately we have no such case here. Nor can I believe that the case of the pan- nel, if he is found by you to be guilty, will be viewed by his own class (for I have a better opinion of their religi- ous and laoBal feelings), as an instance of a man unjustly
(50 CASES DEFORE THE HIGH COURT
No. 6. punished for trying to better his own condition and that aj^d othere. of his associates : The lower orders in this country know High Court, well that anarchy, and general confusion and disorder, ^isis.^' would only -add to their privations. I have adverted to Conspiracy theso topics, because I think they ought to be banished & Sedition, altogether from courts of justice.
The third remark I have to make is, that in judging of such offences as these, while it is on the one hand true, that the extravagance, the folly, and the absurdity of the lan- guage used, may be of great importance in enabling you to come to the conclusion, whether the speeches were used with such a deliberate purpose — a seditious purpose, as is imputed in the indictment ; yet, on the other hand, it is dangerous to hold that because they are silly, they may not also be mischievous. It would be hazardous, if you should think the pannels guilty of forming the Na- tional Guard, yet because you think the project extrava- gant, that therefore it is to be treated only as folly, and a verdict of acquittal returned on that ground. Such a course is not reconcileable with law, or with the expe- rience of man, as to the results which may follow from many extravagant and very silly proceedings.
Whatever difficulties might have been expected to arise in point of law, he was happy to say that none really ex- isted in the case before the Court. The whole question was, were the charges made against the pannels proved ? If they were, there could be no doubt they amounted to the crimes of conspiracy and sedition,, subject to the de- termination of the Court upon the construction of the charge of conspiracy, as to whether it was in fact any thing else than sedition. His Lordship then went over the whole proof, commenting upon it and explaining its bear- ing as he went along.
The Jury, after deliberating for half an hour, return- ed the following verdict : —
' The Jury unanimously find the charge of conspiracy ' against the three panels, as libelled, not proven.
AND CIRCUIT COliRTS OP JUSTICIARY. 61
■ ' The Jmy also unanimously find John Grant not j^^^o-g^^^^^
' guilty of sedition, as libelled. andothpra.
' The Jury further unanimously find Robert Hamilton ^jf^^^"'^'"*-
* guilty of using language calculated to excite popular i848.
* disaffection and resistance to lawful authority. conspiracy
' And, by a majority of one, find Henry Ranken guilty ' of using similar language.' *
The Lord Justice-Clerk. — Gentlemen,be goodenough to observe, in regard to that part of the verdict which contains the specialty finding Hamilton and Ranken guilty of using language calculated to excite popular dis- aflfection and resistance to lawful authority, that this is the description of sedition libelled. Now, to make your verdict correct, you should determine whether they are guilty, or not guilty, of sedition, to any extent you please. You may say, for example, that they are guilty of sedi- tion, in so far as they used language calculated to excite popular disaffection and resistance to lawful authority.
The Chancellor of the Jury. — That is what we mean, my Lord.
Lord Justice-Clerk;. — In using the word ' calculated,' do you mean to leave out the word ' intended ;' or, does your verdict mean to embrace both ?
The Chancellor. — We meant purposely to leave out the word ' intended.'
The Verdict was then recorded as follows : — ' The ' Jury unanimously find Robert Hamilton guilt of sedi- ' tion, in so far as that he used language calculated to ' excite popular disaffection and resistance to lawful ' authority ; and, by a majority of one, find Henry Ranken ' guilty of sedition in the same terms.'
Logan thereupon objected, that this verdict as re- turned, was insufficient to support a sentence. — In re- spect of which objection, the Court continued the diet until the 18th of November.
62 CASES BEFORE THE HIGH COURT
James On the motion of the Loed Advocate, the Cotirt de- j^. °"^"^'- serted the diet against the pannel James Gumming, sim- Nav. IS. pliciter, and dismissed him from the bar.
Conspiracy & Sedition.
Preaent,
^llll^' The Lord Justice-Clerk,
Lords Mackenzie, Moncreiff, Medwyn, Cockbubn, and Wood.
No. 6. The pannels, Ranken and Hamilton, having been and o^r^! placed at the bar, the Lord Advocate moved for sentence Hi-'h Court, against them in the usual form.
^mV^' Whereupon Logan, in support of the objection to the ;:; — : verdict, urged, that in page six of the indictment there was
Conspiracy ' o ' r a
&. Sedition. anallegationofintention,which overrode the whole charge. In a conversation which occurred between the Justice- Clerk and the Jury, the latter explained their meaning. Their attention having been called to the particular charge, and it having been pointed out to them that the in- dictment charged that the language used was intended, as well as calculated, to produce the effect charged, the Jury stated that they purposely omitted the word in- tended ; the verdict was defective, in respect that the terms used by the Jury did not amount to sedition, and were defective in an essential quality of the crime.
Without going into the general question, that dole is necessary in every crime, intention was undoubtedly necessary to constitute sedition. It was necessary also to charge it in an indictment; though it was not necessary to prove what actually passed in the mind of the pannel, yet, where the Jury negatived intention, the verdict was not for the prosecutor, but for the pannel ; Hume, vol. i. p. 351. He more expressly sets forth necessity of intention, vol. i. p. 553. It was not con- tended that calculated might not sometimes comprehend intended. The plans of a surveyor are said to be cal- culated to promote his work, and they are also intended so to do. But it was necessary that the words should be not only intended, but in themselves suited and fitted
AND CIRCUIT COURTS OP JUSTICIARY. 63
to promote the object in this case. When the Intention No. 6. was brought before the Jury they found the words cal- and others. culated, and negatived the inference of intention. HighCom-t.
The LoED Justice-Cleek. — What I want to know is, Ills. ' what Mr Hume means by suited. Conspiracy
Logan. — He means fitted. Suited and calculated ^ ^^'^*°"- mean the same.
Lord Mackenzie. — You mean the words are capable of that interpretation.
Logan, in illustration, referred to cases, Hume, vol. ii. p. 457, to show the converse of his proposition, cases in which a special verdict was held good. In vol. xxiii., State Trials, there were several indictments shewing the necessity of libelling intention.
Lord Justice-Cleek. — There are at least a dozen other indictments in that volume.
Logan. — Yes, but they all more or less explicitly set forth the necessity of intention.
Lord Justice-Clerk. — Not as I read them. You need not refer to those containing charges of convention and conspiracy ; I allude to those confined to sedition.
Logan. — It was clear, on the authority of Hume, that malus animtis was of the essence of sedition ; and from indictments extending over twenty years, in which wicked intention was charged in as many words, or neces- sarily implied by the way in which facts were set forth therein, that it had always been so considered. In ana- logous cases, where the verdict negatived the essence of the crime, it was not a verdict on which sentence could follow. Take theft, for example, where the animus furandi was negatived. In many old cases the pannels were found guilty of carrying away, but no sentence fol- lowed ; Hume, vol. i. p. 73. Again, in fire-raising, it was held to be no verdict unless, by necessary implication, it appeared that the fire was applied with felonious purpose.
LoED Justice-Cleek. — That crime bears the wilful nature in the major.
Logan. — But here the major sets forth that words
64 CASES BEFORE THE HIGH COURT
No. 6. calculated and intended to produce a certain effect (the and othera. Jury havc found they were not intended), and the High Court, analogy of the cases referred to was applicable. Take ^°8"48.^" deforcement, and suppose the crime being set forth by Conspiracy nomen juHs only, the Jury find guilty of deforcement, but & Sedition. jjQ^. proven that the party on whom it was committed was an officer of the law.
Lord Justice-Clerk. — There is no analogy. Logan. — In hamesucken, suppose it found that the party did not enter the house with the purpose of com- mitting the assault. The case of Stein, Hume, vol. ii. p. 459, was directly in point. The major set forth sedi- tion, and the prosecutor was bound to set forth in the minor facts relevant in law as amounting to that crinie, having thought it necessary, not only to set forth that the words charged were seditiously spoken, but libelled and undertaken also to prove the intention with which they were used. Had the indictment not contained this, there would have been an objection to its relevancy, as might be seen from the cases and the analogy quoted. The Court, however, were not dealing with relevancy, but with the finding of the Jury on the facts ; and it must be observed, that the words ' guilty of sedition' were not in the original verdict, and the second part of it was clearly intended to negative the allegation that the words were used with the intention libelled. It is not a good answer that the Jury have returned a verdict on which a presumption of guilt might follow. The Court are bound to deal with the verdict, and, as it stood in connection with the charge ; if it did not amount to the offence charged it was irrelevant ; Hume, vol. ii. p. 448. The Jury had not found guilty of sedition merely, but guilty ' in so far as,' &c. The question whether this was a sufficient finding, must depend on the determina- tion whether intention, either express or implied, was of the essence of the crime.
MoNCREiFF. — The primary question was, what did the Jury signify ? Hume, vol. ii. p. 456. If under an in-
AND CIRCUIT COURTS OP JUSTICIARY. 65
dictment, charging calculated and intended, the Jury No. 6. find the words calculated, but purposely omit intended, and others. they must have meant that it was not intended to pro- riigi, court. duce the result. It could not be doubted that intention ^"848.^" was of the essence of the crime. It might not be neces- conspiracy sary to libel, or to find it in the verdict in terms, as it ^ s^^'*'°"- might be deduced. But the condition of the argument was, that it was negatived. If the pannels were tried for using reckless language, that was no crime per se ; if the indictment had libelled calculated, but not intended, that would not have amounted to sedition. Here the verdict negatived the terms of the indictment.
Craufubd. — In the major, the charge was simply se- dition, which required no explanation in either the in- dictment or the verdict. The pannels put their state- ment incorrectly, when they said that the charge was, that words were used, calculated and intended to pro- duce a certain effect. The charge was, that they openly and seditiously used words, and the rest is descriptive, and intention was implied in the charge. Starkie on Libel, 2. 331. And at p. 344, Starkie draws the dis- tinction between doing things in their own nature law- ful, and those by nature unlawful. On this principle there was no criminal intention to be stated, or found, or proved as a separate matter. Where the words were unlawful, unless want of intention be clearly and positively found, the verdict was a conviction. The cases, occurring at end of last century and beginning of this, were of two classes. The one, where the prisoners, though not actually accused of conspiracy, were yet connected with a convention, and the intention to con- spire was necessarily set forth. In the other cases, where there was no conspiracy, the word intended is not introduced. But the case of M'Laren and Baird, State Trials, vol. xxxiii., is still more explicit. In particular, the opinion of the Justice-Clerk, p. 127. Every crime in which will was involved, implies such an amount of iiltention as to make it criminal
66 CASE8 BEFORE THE HIGH COURT
No. 6. An /explanation was made by the Jury, of which I
and Others, give the pannels the full benefit. If this was an expla-
High Court, nation discharging from the offence the general intention
Tm. ' involved in sedition, he could not ask for sentence. But
Conspiracy the Jury had purposely remained silent as to such im-
& Sedition. jjjjgjj intention, in so far as it was legally involved in the
crime of sedition. They had in general terms found guilty
of sedition, and that finding must have its legal effect.
Lord-Advocate. — The pannels were charged with sedition, and with speaking on certain occasions certain words, characterised in a particular manner. The Jury returned the verdict now under consideration. The in- dictment says intended and calculated. The point to be made out on the other side is, that it was necessary for the prosecutor to libel intention as distinct from calcu- lated. Looking at the indictment on one hand, and the verdict on the the other, he found nothing to stop him from saying that the verdict was good, and that it must have its legal effect. The pannels said he was not to stop at the record. An explanation was made by the Jury. Though he was thus going to extraneous matter, he would not object, as the proceeding which took place between the Court and the Jury was cotem- poraneous with the verdict. It would be strange if the explanation was to nullify the verdict. The Jury find guilty of sedition, and then proceeded to say, in so far as he used words calculated to produce that which is sedi- tion ; they simply abstain from saying anything of in- tention. Had they refused to specify intention where it was necessary to state it specifically, it would have been a different matter. That is not the case here. They found all the criminal intent necessary for them to find to be averred, when they found guilty of sedition; and if they had not found with respect to the specific intenr- tion, neither have they negatived the intention.
MoNCEEiFF.— It is important to be cautious, lest per- sons not convicted by the jury should be punished. The verdict must be clear, and the prisoners have the benefit of any doubt. He did not concede that it was enough
AND CIRCUIT COURTS 6F JUSTICIARY. 67
for the prosecutor to put down words, and simply charge No. 6.
^ ,. . S , 1 . ^ *' ?. John Grant
them as seditious. In whatever way the intent was h- and others. belled, it must be done either inferentially or directly. High Court. If this was true, the next proposition was certain, that "lis. ' intention was not only of the essence of the crime, but conspiracy a fact to be proved. Not a separate intent apart from * s^^'*'""- the words; but it was as necessary to prove the intent as the words. If the prosecutor undertook to prove to the Jury that the words were calculated and intended to produce a particular result, and then said one meant the other, he contradicted his indictment. Two things were to be proved under such an indictment, viz., both the fitness and the intention. Whether intent was to be inferred from words, or from facts, it must be proved. 4. Barnewell and Alderson, 430 ; King v. Burdett ; M'Laren and Baird supported this proposition. Wickedly and feloniously was there set forth, which implied intent. The question came to be, had they done this? Nor would the verdict imply it ; but were the Jury satisfied thereof. The pannels were entitled to assume, that when the Jury refused to find intention, they found inten- tion not proved. They were not to construe the verdict to the effect of leaving the Jury to find on matters of law. If they find guilty of sedition, coupled with an explanation showing that they did not find what in law was sedition, the verdict was a verdict of acquittal. The question was, what did the Jury mean by sedition? They have explained guilty of sedition, if speaking those words is sedition, but not otherwise. The Jury were not satisfied of the criminal intent ; they have negatived it by implication, and there is nothing to shew that if they had been sent back, they would not have acquitted. The Jury might have been satisfied that the words were spoken without the intention libelled, and may have meant to have said so ; and if so, the pannels are not guilty of sedition.
The Court being divided in opinion, adjourned the diet until the 25th of November.
Nov. 25. 1848.
68 CASES BEFORE THE HIGH COURT
Present,
The Lord Justice -Clerk,
Lords Mackenzie, Monckeifp, Medwyn, Co6kburn, and Wood.
No. 6. Their Lordships then delivered the following opi-
JoliD. Grant •
and Others. HIOHS :
High Court. The Lord Justice-Clekk. — In every view which has 1848^. been presented against this verdict, there are, in my opi- Conspiracy nion, either unwarranted assumptions in point of fact, or & Sedition. ^^^^ grave misconceptious in point of law.
The jury stated, in answer to a question from myself, that they purposely left out the word intended in reference to the averment at the close of the indictment, descriptive of the character of the language used by the pannels. This, therefore, was matter of deliberation before they settled the terms of their verdict ; and the eifect of this, in their minds, must also have been well considered, because, against one of the pannels, the verdict was only returned by a majority of one. Then, after this resolution, they proceed, as they ultimately explained their verdict, and stated what was their purpose throughout, to find the pannels guilty of sedition, in so far as that they used lan- guage calculated to excite popular disaffection and re- sistance to lawful authority. This is the result arrived at, then, after their deliberation on the word ' intended,' and that such a result should be equivalent to a verdict of not guilty, is a conclusion opposed, in my apprehen- sion, to every sound legal principle and to the plainest suggestions of common sense. Had the point not oc- curred on a verdict in a criminal case, I do not believe that such a notion would have occurred to any mind.
Indictments for sedition, as framed according to the law and practice of Scotland, generally set forth in the minor, that the accused — ' wickedly and feloniously used,' or ' seditiously used' certain language, which is there de- scribed as being of a certain character, generally said
AND CIRCUIT COUKTS OF JUSTICIARY. 69
to be ' calculated^ sometimes, but not so often, ' intended No. 6.
. John Grant
' and calcmated,' sometimes ' tending,'— sometimes is not and others. so described at all, but left to the construction of the High Court. Court and Jury, and merely said to be ' seditious.' isit.
Now, two remarks arise on this the settled style of Conspiracy
•^ & Sedition.
the indictments.
1. That the real and proper averment in the minor, of the guilt of the pannels, is in the allegation that they seditiously used the language imputed to them. This is truly the proper allegation of guilt ; The appropriate place for it : The proper form of it. The description of the character of the language used is a different allega- tion,— ^not, in truth, necessary at all, — and when used, going not so much to the general guilt as to a particular quality attached to the particular words, in addition to their plain import, in so far as it is also said, that the pre- cise effects which they are calculated to produce were in the actual intention of the party in the clioice of them. Now, this particular averment may be established in whole or in part, when it is set forth in the indictment. But the failure to prove part of that particular averment — e. g. the failure to prove that the words were intended to produce the exact effect which it is proved they are calculated to produce, — does not necessarily, either in legal principle, or by the style of indictments, or by the reason of the thing, negative the general averment, that the pannel used such language, not innocently, but seditiously, looking to the place, the occasion, the num- bers present, the circumstances of the time, the wilful recklessness of all consequences, the violation of his duty of allegiance, and the general purpose of mischief which the averment of ' seditiously speaking' them imports.
If the language is not in itself calculated to produce any impression tending to evil results on the minds of the auditors — if the language is indifferent, or bears a meaning apparently foreign to a seditious meaning, but was intended to import something different, and to be so understood and applied, then the particular intent with
70 CASES BEFORE THE HIGH COURT
No. 6. -which the words were actually in that case spoken, and
John Grant " i. I," V
and Others, not their teadency, comes to be the averment wnicn High Court, must be made out ; e. a. If the words were, ' God save
Nov. 25. ' ^ , , . J •
1848. the Queen' — but this was meant and understood m some Conspiracy caut language of seditious orators, to mean, ' Let us de- ' ""■ pose the Queen,' and were spoken in truth as an exhorta- tion to that effect, it would be necessary to aver and prove the special intent with which such words were spoken, for their tendency would not apparently pro- duce any evil result : And hence, in addition to aver- ring that such words were ' seditiously spoken,' the actual and special meaning or intent with which these particu- lar words were spoken, must be libelled and proved. So also in another class of seditions, such as was also charged in this indictment — a conspiracy to effect a change in the Constitution by force and violence ; that particular intent is, then, of the essence of the crime, and the acts, however seditious in themselves, would not prove the charge, if such was not made out to be directly the design and purpose of the conspiracy.
When, on the other hand, the plain and direct ten- dency of the words or writing is, in the opinion of the jury, to produce evil results, because so calculated, then the particular intent in the mind of the speaker as to the effect of these words, provided he spoke or published them, not innocently, but looking to all the circumstances, unlawfully, comes to be immaterial to the offence of se- dition and to the averment of guilt in the indictment.
2. The second remark I have to make is, that when a ver- dict on such an indictment as this, or on any indictment for any other offence in Scotland is returned, finding pannels guilty, it is never of the offence in the abstract stated in the major. It applies to the facts in the minor. Hence, a verdict, guilty of sedition, in so far as he used language calculated, &Ci, need not repeat, and such verdicts never do repeat, in so far as he seditiously used, &c. This is quite a clear and fixed point. In a case of theft, if the pannels stole only some of the articles, or did not steal
AND CIRCUIT COURTS OP JUSTICIARY. 71
them from a lockfast place as libelled, or under trust as No. 6
■* John Grant
labelled, as aggravations, if the jury return a verdict and others.
guilty of theft, in so far as that he took the v^atch, leaving High court. out money, or took them from an open drawer, or in a isis. ' way which excludes the trust, it is not necessary for them conspiracy to say further, in so far as that he theftuously took them. ^ ^ '*'""' The words guilty of theft, completely establishes the cha- racter of the act of taking. Just so, guilty of sedition, establishes the character of the act of using the language, else the party could not have been found guilty of sedi- tion. This is a point so thoroughly fixed, settled, and plain, that although I alluded to it in the course of Mr Craufard's address, it was not attempted to be contested by Mr Moncreiff in reply. It is a point, however, ex- tremely important in the consideration of this verdict, and of its application to the indictment. In my apprehen- sion decisive, unless the whole averment in this indict- ment is necessary to the crime of sedition.
In all such questions, the practice of the Court — that is the style and structure of indictments in a variety of cases, all of which have been under the -notice of the Court and found relevant — comes to be the law of the Court. This proposition has received the ftill assent of the whole Bench on many occasions, and especially on one late occasion, (Janet Campbell, Nov. 4. 1846), when only one judge dissented from this rule of law, on a very important matter, so deduced from the practice of the Court as often acted upon.
Indeed, in criminal law, I know nothing truly more dangerous, and if any question as to the privileges of the subject can be supposed to be involved, however indi- rectly, in this case, more likely, I should say, to be pre- judicial to the interests of the subject, than loose, un- authorized, and hasty departure from settled practice, because in one case a pannel or the prosecutor may have accidentally an interest to try to free himself from the rules of such practice.
Attaching, then, great importance to practice, the first
72 CASES BEFORE THE HIGH COURT
No. 6. question I address myself to is this — was it necessary in and others, an indictment for sedition, for the public prosecutor, who High Court, lias averred that the words were ' seditiously used,' to set 1848. ' forth that the words were intended as well as calculated. Conspiracy to produce the results ascribed to them ? If left out, is ^ ' """■ the offence complete — is the indictment charging the offence equally good ? And if, when purposely left out by the prosecutor, the indictment is good, is it necessary that the jury should find what the prosecutor might thus competently leave out as immaterial ? If the indictment charging sedition is good, when it says the words ' sedi- ' tiously used' were calculated to produce the results in- volved, but ex proposito leaves out the allegation that they were intended, can a verdict be bad which finds guilty of sedition, in so far as, that he used words calcu- lated to produce the evil results, but omits purposely the further and separate averment that they were used with that particular intent ?
Distinctly, aiid in terms, the pannels' counsel did not plead that an indictment would be bad, unless it was said that the words were intended to produce the particular results ascribed to them. It was said the proposition was not admitted, but that they would waive arguing the point. But the point is, in my judgment, at the founda- tion of the whole matter — and no opinion can be sound or satisfactory which is not based on the consideration of the rule and practice of the Court on that leading point. Let us see how the practice stands, — and this is the more important, because in nearly all the cases to be re- ferred to, the pannels were aided by counsel of the greatest eminence and talent.
1. Berry and Robertson, 1793. Here, the question, if doubtful, arose even on the major proposition, which set forth, ' the wickedly and feloniously printing any sedi- ' tious writing or pamphlet, containing false, wicked, and ' seditious assertions, calculated,' &c., and then the pub- lishing of any such. Then the minor merely said that they printed and published, wickedly and feloniously, a
AND CIRCUIT COURTS OF JUSTICIARY. 73
' seditious' pamphlet. The counsel w ere Mr Wight and No. «>
,, T^, , , , , . . , , T. John Grant
Mr Fletcher — both zealous constitutional lawyers, cut and others. no objection was stated to the relevancy, though remarks HighCourt. were made as to the object of the pannels being only to isis.'^' make gain by the sale — a purpose perfectly consistent conspiracy with the seditiously publishing ; for, I believe, in nine ^ *""' cases out of ten, gain, celebrity, collection of tribute, and so forth, are the real motives, and that the parties speak- ing or publishing the sedition, know that their trade would be destroyed by any actual commotion ; and often exhort to peace, at the v.ery same time they use the most inflammatory and seditious language. The jury found that the one printed and published, — ^the other published only, — the pamphlet libelled on. This verdict was objected to by Mr Wight, and afterwards also by Mr Henry Erskine. The argument is most instructive. Mr Wight contended that the allegation that the pamphlet was se- ditious, or calculated to do so and so, was not affirmed by the verdict. In that argument, the tendency of the writing is taken to be the point to be established in a case of sedition. Then he argued the criminal purpose or illegality of the act, was averred in the indictment, in the words ' wickedly, and feloniously ;' and that this, the proper averment of the purpose or intention, was not af- firmed by the verdict. In that debate, the illegality of the act is properly taken on both sides to be averred in that part of the indictment ; but it is not supposed that the particular intent which might be ascribed to any par- ticular words, was of the essence of the crime. As Mr Henry Erskine well sums up his argument against the verdict — The libel says, 1. That the pannels printed and published the pamphlet ; 2. That they did this wickedly and feloniously ; and 3. That the pamphlet was seditious, and these facts must be found. The judgment on the verdict might also be referred to in support of the view I take of this verdict as a very important authority. But I pass over that as of less direct application.
2. Smith and Memmons, 1793.-^Major, — wickedly and
74 CASES BEFORE THE HIGH COURT
No. 6. feloniously publishing any seditious writing, tending to and otS. create a spirit of disaffection, and to excite tumult, &c. High Court. 3. Skirving. — Major, sedition — Minor, Whereas a se- me. ' ditious or inflammatory writing, calculated so and so, was Conspiracy Sent to Skirviug to be circulated, he did circulate the & Sedition. ^^^^ rpjjjg pg^^j. ^f ^j^g indictment was distinct and apart
from the after charge as to the Convention.
Mr Blair — ^who alone conducted that prosecution — thought it necessary to state his views on the 2d part of that indictment at considerable length, — the more so, as we all know, because, from his absence at the other trials (an absence not peculiar to them) a very false re- port had been raised that he disapproved of the prosecu- tions ; but, on the first part of the indictment, he simply said he held the crime to be completely and well laid in the libel.
4. Morton, Anderson and Craig — the major sets forth only, ' uttering seditious speeches, tending to create,' &c.
I think the minor comes to the very same thing, as no intent as to the particular words set forth is annexed to them, different from the seditiously or wickedly uttering them. This was the first case, I believe, in point of time, and an argument was stated, though hardly amount- ing to an objection. The Judges gave their opinions seriatim on the indictment. Lord Henderland particu- larly gives his opinion on the major I have quoted. I think the rule of law is well stated by Lord Justice- Clerk Braxfield, vol, xxiii. p. 15, especially in his refe- rence to the case of blasphemy as analogous. He ob- served, ' that it was no good defence to say, that the ' words here spoken were mere verba jactantia. They ' were obviously of a most wicked and seditious import ; ' and no. plea of rashness, wantonness, or conviviality, ' could be admitted as an excuse. His Lordship illus- ' trated this by referring to the horrid crime of blas- ' phenay, where, though the words uttered could be no- ' thing else than wind, or foolish in the extreme, still they ' were impious and wicked, and might, in certain cir-
AND CIRCUIT COURTS OF JUSTICIARY. 75
cumstances be cognisable and severely punishable by a No. c.
criminal court.' and others.
5. Muir — ^the major there described the publications High Court, as calculated — as of such and such a tendency — as tend- isis.
ing to produce, &C. Conspiracy
In the minor a specific intention is in some cases dis- ^ tinctly ascribed to the pannel — in others not — according to the nature and import of the words and publications. A great deal is said of this, and some of the more noted cases at this time, by persons who, I firmly believe, never read the indictments, and confound the acts and publications with their opinion of the punishment. I re- fer to them as unquestionably relevant indictments for sedition — whether parties might have concurred in the verdict returned by such men as Mr Homer or not.
6. Alex. Leslie. — Major, sedition ; as also the wickedly and feloniously circulating any seditious publication, or any publication tending to vilify, &c. the established re- ligion.
iUfmor-— averred the wickedly and feloniously circu- lating seditious publications ; also writings tending to vilify : the seditious publications are also stated in an- other place as tending to alienate, &c. Then the blas- phemous work is again described as tending, &c.
7. T. F. Palmer. — Major, wickedly and feloniously writing any seditious or inflammatory writing, calculated, &c. ; also wickedly and feloniously publishing any such sedition.
Minor — described the writing as of a wicked and se- ditious import. To that indictment elaborate objections were stated, at extraordinary length, by Mr Hagart ; but limited to this, viz., that the writings set forth even as matter for the Court in the first instance, not calculated, on sound construction, to produce the effects ascribed, and were not of the import and tendency stated, but that the scope and burden (as Mr Hagart put it) were diffe- rent. In a very long, zealous, and elaborate argument, that is the only objection taken.
76 CASES BEFORE THE HIGH COURT
No. 6. Ml' M'Conocliie, first Lord Meadowbank, puts his
John Grant /■ t_ • •
and Others answer OH the ground of the import of the writing. High Court. The opinion of the Court assumes the import to b6 ?848. ' the matter for decision. Indeed, if special intention Conspiracy had been ascribed to any particular words, or had been necessary in law, the short answer would have been, — the import of the publication we need not consider, and is im- material, since the particular intention with which special words were written, must be averred and is to be proved, and has not been averred although essential. No such view occurred to any one. In that case, the pannel was as- sisted also by Mr Clerk.
The case went to the Jury.
I am not sure that there is to be found any where, on the whole, a better practical exposition of the law of se- dition than in Mr Clerk's speech to the Jury for Palmer. We have it revised in the State Trials by himself, and it is a beautiful instance of that great power of discrimina- tion, and masterly precision of language which he pos- sessed in so eminent a degree, along with the highest order of legal talent. In the whole of that speech he admits that the import and tendency of the writing is the point in sedition, unless the party has a legal object in view.
After explaining the general right of the subject to discuss such important objects as reform, with fervour and zeal, he says — ' He who speaks or writes to raise ' discontent or disturbance, or to bring the Government ' into hatred or contempt, is seditious, and he whose ' speeches or writings have that tendency is seditious, un- ' less in either case the speaker or writer has a legal ' object in view.'
Then, when he comes, after a long general argument as to the latitude belonging to the subjects of this coun- try to comment on the terms of the publication in ques- tion, his argument is not whether such and such effect are intended; but very specially and particularly he says — ' Gentlemen, — I will not contend that a writing,
AND CIRCUIT COURTS OF JUSTICIAKY. 77
' malicious, — seditious in itself, and calculated to raise No. b.
T • 1 1 1 1 o ^"^'^ Grant
' sedition among the people — can be excused by the fact and others
' that no sedition was raised. In general, it is true in High Court.
' criminal cases, that intention is not sufficient to crimi- °usl '
' nate, unless the crime be perpetrated. But, in cases conspiracy
' of sedition, I am disposed to admit that the intention
' is carried into effect, and the crime is committed by the
' act of publishing the seditious writing. But, gentle-
' men, what are the circumstances here ? It is not
' proved that the purposes of this society went any far-
' ther than a moderate and a national reform. The
' hand-bill complained of the very grievances which are
' always enumerated by reformers ; and it was not either
' intended or calculated to raise sedition. It is true,
' indeed, that every publication against the measures
' of Government must necessarily raise discontents in
' the minds of the people ; for no such writing ever was
' published with any other intention than to shew the
' people what their true intent was, and that it had not
' been consulted by Government. Discontent is un-
' avoidable where public measures are wrong or thought
* to be so. But discontent is very different from sedi-
' tion. The people may be perfectly quiet amidst the
' greatest discontents. To render a writing seditious, it
' must be intended or calculated to urge the people to
' actual violence, and how can it be said that the hand-
' bill is of that description ? Where is the excitement
' to illegal acts of any sort ?'
In the charge to the jury, Lord Abercromby, in a most temperate, lucid, and fair charge, puts the question exactly as Mr Clerk put it — whether the writing libelled on be of a seditious tendency.
8. Stewart and Elder. — Major, wickedly and felo- niously writing and printing any seditious libel : Minor described it as seditious ; also which inscriptions were obviously calculated,
9. Alexander Scott. — Major sedition, as also wickedly and feloniously circulating and printing any writing of a
78 CASES BEFORE THE HIGH COURT
Noj6. seditious import, and tending, calculated, &c. Minor
and others, same.
High Court. Other cases of the same sort mis^ht be cited from that
Nov. 25. T rr.
1848. period, but there are others of a later date. It is sum- Conspiraey cieut to refer to one, the most noted in recent times;
10. M'Laren and Baird, 1817, — which attracted great attention. Major, sedition. Minor, states that they wickedly and feloniously delivered seditious speeches, cal- ctdated, &c. ; the same is said of the publication.
These pannels were very ably assisted, and I know from my friend Mr Campbell, of counsel for M'Laren, that Mr Clerk, who conducted for M'Laren, bent his whole mind to the case, as zealously as he could have done in younger life, and directed anxiously the state- ment which Mr Campbell made on the indictment before trial. Mr Campbell says the passages will be a matter for sound construction for the jury. The relevancy was not objected to. For the other pannel, Mr Jeffrey ended his explanatory statement to the Court with stating, after a short explanation, that the object of the publication was to get money ; ' that as to relevancy, much will de- * pend on the interpretation to be given to the words ' libelled on.' And that indictment went to the jury with- out any expression whatever, annexing to the particular words any special intention, or implying that, in addition to being seditiously spoken, the words were intended, as well as calculated.
Intended was left out in the indictment. The convic- tion was in terms of the indictment, and a good verdict. Intended is in this indictment ; was it necessary to the charge ? I hold not. The jury leave it out. Then, if not necessary to the charge in any form, how shall the verdict fall, or be equivalent to one of not guilty ?
This indictment charges sedition in the major.
The minor sets forth that Ranken did openly and ' sedi- ' tiously,' at a public meeting on Burntsfield Links and other occasions, utter certain language, and the same is averred as to Hamilton ; and the indictment closes with
AND CIRCUIT COURTS OF JUSTICIARV. 79
the sreneral statement, that the whole or part of the No. e.
1 o % • 1 1 111 ^°^^ Grant
language above set forth, was intended and calculated. and others, Now, that the whole of the averments in an indictment High Court. need not be proved and affirmed by the jury, if what is \u%. ' of itself clearly relevant is found, is in the general case conspiracy admitted to be dear law. That this indictment was * perfectly relevant without the words intended, and with calculated alone, I apprehend to be a point fixed by authorities, and clear on principle. That that which was unnecessary, need not be found, is a point also quite clear in our criminal law and practice. Hence, in the abstract, and in any other case, this verdict is unim- peachable. But then, it is said that the omission, pur- posely by the jury of ' intended,' negatives the whole aver- ment of guilt in the minor, and renders the verdict one of not guilty in the case of sedition. How that should be, if ' intended' need not be in the indictment at all, I have not been able to comprehend. But the whole argument is founded on a complete misapprehension, both of the legal principles applicable to our indictments, as also to the crime of sedition.
I have already adverted to the misapprehension of the principles on which our indictments are framed.
1. The proper averment of guilt in the minor in this charge of sedition, is in the allegation that the pannel did openly and ' seditiously/ and in presence of great numbers, utter the language imputed to him ; the aver- ment which follows is properly descriptive of the character of the language so seditiously used. To add intended to calculated in that description is really, when care- fully considered, an allegation quite misplaced, as well as unnecessary to complete the full averment of guilt. It may be true that the exg,ct effects which the language is calculated to produce, were also intended. But that is not the necessary or proper averment of guilt in a case of sedition in the minor. The averment of guilt in the minor is in this, viz., that the party did seditiously utter language calculated.
so CASES BEFORE THE HIGH COURT
J f^G ' ^' ^^® second misapprehension is in assuming that this, and Others, the proper averment of guilt, is not affirmed by the ver- HighCourt. dict wheu the Jury, combining, as every verdict does, the 1848. ' major and minor, with the latter of which the jury have Conspiracy particularly to do, find the pannels guilty of sedition, in ^ ' '" ■ so far as that they used language calculated to excite po- pular disaffection and resistance to lawful authority.
3. But the main misapprehension is in regard to the law of sedition ; and, in my opinion, it is a very great and serious misapprehension.
The crime of sedition consists in wilfully, unlawfully, mischievously, and in violation of the party's allegiance, and in breach of the peace, and to the public danger, uttering language calculated to produce popular disaffec- tion, disloyalty, resistance to lawful authority, or, in more aggravated cases, violence and insurrection. The party must be made out not to be exercising his right of free discussion for legitimate objects, but to be purposely, mischievously, without regard to his allegiance, and to the public danger, scattering burning firebrands, calcu- lated to stimulate and excite such effects as I ha^e men- tioned— reckless of all consequences. As Mr Clerk said in Palmer's case, ' He, whose speeches or writings have 'that tendency, is seditious, unless, in either case, the ' speaker or writer has a legal object in view.
Now, in this case, I apprehend that the law does not look for or require, besides this illegal spirit, this general dole or legal malice, the additional and special element of the intention, or purpose, with reference to the pre- cise effects which the words are calculated to produce. If such purpose is also proved, the case will be one of more deliberate, more dangerous, and more aggravated sedition. But very often the precise effects which the words are calculated to produce, are not at all what the party intends, and still more, not what he has brought his own mind up to, just because they point to immediate violence. The party guilty of sedition in uttering such language is often only playing the part of a
AND CIRCUIT COURTS 0? JUSTICIARY. 81
field orator, hallooed on by shouts from an excited and No. 6. turbulent crowd — often of the worst characters : He has and others. to sustain his part as a leader ; has to outbid in exaggera- High Court. tion and violence the man who spoke before him ; has "sia. ' got so familiarized to violent and dangerous language, conspiracy that he does not think how they may affect others ; has * Sedition. to secure a liberty for bold language, and often to secure pay for such achievements : He is aiming, perhaps, at being chosen as a delegate ; thinks, perhaps, that by intimidation he may concuss and frighten others into an exaggerated notion of the numbers and power of those who venture to utter such language : He is reckless as to what he says ; thinks and cares little about it, if it answers the object at the time ; but all the while he may not desire or intend the precise effects which his words are calculated to produce — it may be of instant violence. Yet of sedition he is clearly guilty, if these reckless words are calculated to produce such results.
I take what appeared in another part of this case as a very apt illustration of how little the intent to produce the actual effects which the words are calculated to pro- duce, enters into the guilt of sedition, in point of law, as a necessary element. Your Lordships, who sat with me, will recollect that, in reference to the part of the case charging conspiracy, and the purpose of forming a Na- tional Guard, for effecting changes in the constitution by force — as to which the jury very correctly found the charge not proved, but only not proved — we heard a great deal of the language and proposals of a person, whose warlike language (for it is lamentable to think how commonly and frequently the purpose of arming seemed to be talked of) obtained for him the nickname of Briga- dier-General. Now, at a public meeting, in a hall in Edinburgh, before 600 or 700, at which one of thepannels was not present at all, this individual — I am assuming the facts for the sake of illustration, of course not as true — openly and distinctly purposed and exhorted the meet-
82 CASES BEFORE THE HIGH COURT
johl°Grant ^"S ^^ ^"'"^ ^ national guard of 1600 men, in companies and Others, of 400, two of whicli Were to be armed as musketeers, High Court, and the other two as lancemen, and enlarged on the
Nov. 25. "^
1848. necessity of chartists and all others resorting to arms ; Conspiracy which seditious proposal was prefaced, one of the wit-
& Sedition. , ^, / , . , ^ i i x j
nesses who opposed it, stated, ' with a great rhodomontade ' of poetry ;' and Mr Logan, whose object was to shew that his clients had always discountenanced this indivi- dual, told us, as a proof of the extravagant pitch of heroism to which he worked himself up (though that part of the speech was not in evidence,) that he, at last, declared that he was ready, and hoped, to head this body against Her Majesty's troops, and that he had no doubt he would rout all whom he might encounter, and out- general the Duke of Wellington himself. Now, if an indictment had been preferred against this party, who was skid to have left the country, charging sedition, and, in the minor, setting forth that he openly and seditiously, at a public meeting, made this proposal, and used such language, and had further averred that the language was intended and calculated to stir up the people to imme- diate insurrection under him, and to array themselves under him as a leader against Her Majesty's troops ; and if such proposal and language had been proved, I suppose no Jury of reasonable men (unless the defence of insanity had been established,) could have hesitated to say that such a party was guilty of sedition in using language of such import and tendency. But it would have been very difficult, probably, to satisfy them, at least it would have been very difficult to satisfy me, that this most redoubt- able personage did really intend, or desire, to lead any attack against Her Majesty's troops, or to encounter, I do not say, the Duke of Wellington, but even to stand the steady fire of a Serjeant's party of the very oldest pen- sioners on the list. That would have been about the last thing that I should have believed, that he had any intention of doing. Yet, of sedition, such a proposal, and language so calculated, would justly convict a party. This is just
AND CIRCUIT COURTS OP JUSTICIARY. 83
the distinction applicable to this case and verdict, ^.nd a Noj_b^^^
practical illustration, which shews the principle of the and others.
law, and the principle of our indictments. The exact High Court.
' r r Nov. 25.
effect which the words are calculated to produce, is one i848.
thing that may or may not be intended. The orators, on Conspiracy
such occasions, often know very little, and think very
little, of the effects which their words are calculated to
produce. But the wilfully and rciischievously using such
language against their allegiance, and against the peace
of the country, and the rule of law and order, makes
them guilty of sedition.
This wilful, disloyal, and mischievous spirit in the use of such language, whereby popular disaffection and re- sistance to lawful authority is directly encouraged and excited, makes the crime of sedition, even although the language used may not have been intended to produce the exact effects which it is calculated to do.
Besides the general, unlawful, wilful, and disloyal spirit, which is the illegal purpose charged by the word ' seditiously/,' to require that the precise intention to pro- duce the exact effects which the words are calculated to pro- duce, sbould be proved over and above a finding that the party was seditious in using the language, would, in truth, surround much most mischievous and dangerous sedition with complete impunity ; for 1. such additional intention it may be very diflBcult to prove ; 2. The whole appear- ance, and manner, and conduct of the party, of his asso- ciates, and of the meeting, may really satisfy all that the exact effects which his words were calculated to produce, were not really and solely designed by him. The man may have been too excited to have any such deliberate cool design as instant insurrection before him, although his words were directly calculated to produce that result. Nay, one might be quite satisfied of the reverse, — that his object was to keep up great and alarming discontent and agitation for his ovm base purposes, to secure weekly or yearly contributions, as a reward for his trade; and that he well knew that any actual outbreak would at once
84 CASES BEFORE THE HIGH COURT
Jota Grant ^^^^ *° *^^ extermination of his calling, and that such re- and Others, gultg "were what he most dreaded, though he was using HighCo^urt. language well calculated to produce these effects, unless 1848. he at the same time cunningly kept under, by his iniluence. Conspiracy the Spirit he was tryins: to rouse. But though a Jury
& Sedition. , „ , ■' ° . , . . .1 j.
shall be satisfied upon that pomt, is the crime not that of sedition, if the language is calculated to produce the results, and if the party is acting unlawfully, contrary to his allegiance, and to the peace of the realm, in using such language in the circumstances, and on the occasion in question, having no justification in object or occasion ?
Hence, then, the proper guilt of sedition (of that kind, I mean, which is here prosecuted,) consists in the unlaw- ful and disloyal spirit in which, contrary to the subject's allegiance, and in violation of the peace and order of society, and of the rule of law, language or publications are used and circulated, calculated to produce, as here found, ' popular disaffection and resistance to lawful ' authority.' And it is a misconception of the law to suppose that the effects which the language is so calcu- lated to produce must further be specifically intended, so that the Jury must find that the words were intended as well as calculated to produce these results. If such had been the law, every conviction on an indictment not containing that additional averment in the minor, has been a bad verdict. But I hold the law to be fixed by the cases in point of principle and practice.
If the view of the law I have now stated meets with the concurrence of the Court, then, most clearly, the ob- jection to this verdict wholly fails.
I have carefully reviewed the authorities, and I am satisfied that this view is the sound result to be derived from them all.
It is part of the very misconception I have adverted to, to take the general passages descriptive of sedition, and in the words therein employed, relative to the unlawful purpose and spirit of the party, necessary for the crime of sedition, to be applicable to the construction of an in-
AND CIRCUIT COURTS OF JUSTICIARY. 85
diotment framed like the present, and to the particular ^ No- 6-
'■ . * John Grant
and unnecessary averment contained in the present, over and others. and above the averment that the language was openly and High court, seditiously spoken, viz. that the same was intended, as lah. well as calculated, to produce such and such results. I Conspiracy do not so understand the passages in Hume at all. I do '"•>'"'"• not think they have the least application to the very special question as to this particular and specific aver- ment, that the words were intended to produce the re- sults mentioned.
At the same time, I am not prepared to adopt the general description of Hume as to sedition, as of perfect accuracy or precision, even as a general exposition of the law. And I cannot state, consistently, the grounds of my opinion, without meeting directly the passage founded on. I should say that his doctrine is too unqualified and too abstract on both sides, that it restricts too much, in words at least, the subject's right of discussion and speech, and in what is to be proved, requires more to be esta- blished on the part of the prosecution than the nature of the offence, the general principles of the law, and the peace and welfare of society, prescribe as essential elements of the case. He seems to put the crime of murder and sedition on the same footing ; in that I differ ; and he does not seem to me to draw the distinction fully between sedition and those treasons in which a special intent is the offence. Indeed some of his expressions seem more ap- plicable to such treasons than to sedition.
In his chapter on Sedition, Hume refers back to the part of his work on Leasing-making, for his explanation of the ' general notion of the offence of sedition,' as he terms it, that he need not further describe it ; and says, p. 352 : — ' It is further to be observed concerning lease- ' making, that it always has relation to the King, or (if ' that is not abolished by the long disuse) to some emi- ' nent individual connected with the Court, and can only ' be committed by means of false speeches, or reproach- ' ful and contemptuous words thrown out against him,
86 CASES BEFORE THE HIGH COtJRT
No. e. * But sedition is a crime of a far wider and a more various
and Others. * description, as well as of a deeper character, and may
High Court. ' equally be committed in relation to any of the other
1848. ' ' parts of our frame of government, or to any class or
Conspiracy ' Order of our society, and though no spec