LIBRARY UNIVERSITY OF CAUEMUA RIVERSIDE , Courrs of over ani fer^iwer <2* i QR.O/ d. \\, 1820. The Court met at nine o'clock forenoon, and was opened by the Cryer. PRESENT. The LORD PRESIDENT, The LORD JUSTICE CLERK, The LORD CHIEF BARON, The LORD CHIKF COMMISSIONER ADAM, Lords HERMAND and GILLIES, the two Lords Com- missioners of Justiciary. The names of the Grand Jury were called over. The Foreman of the Grand Jury, in their name, requested the Lord President to permit his address, yesterday deliver- ed to the Grand Jury, to be published, to which his Lord- ship consented, and stated it should be published as soon as he had delivered his address in the four other counties named in the commission. The witnesses sworn : When William M'Manus was about to be sworn as a wit- ness, it was observed that he appeared to be very young. 34 Mr Serjeant Hulloc1c.-By the law of England, we have nothing to do with the question of a witness's age, provided he understand the nature of an oath. Lord President. William, you understand the nature of an oath, that it is taking God Almighty to witness the truth of what you say, and calling upon him to punish you if you say what is not truth ? Witness. Yes. Lord President. And you understand you are liable to be punished for perjury in this world, if you tell other than the truth ? Witness. Yes. The witness was then sworn with others. William Henry Burn, another boy, was also questioned as to his knowledge of the import of an oath. Lord President. You understand the nature of an oath, my little man ? Witness. No, sir. Lord President.^ You call upon God to witness what you say, and to punish you if you tell a lie Do you understand that ? Witness. Yes. Lord President. You have been in church, and have been taught religion ? Witness. Yes. Lord President. You know that telling a lie is a great sin? Witness. Yes. Lord President. -In taking an oath here, you are calling on God to witness to the truth of what you say, and punish you if you do not tell the truth. Do you understand that ? Witness. Yes. Lord President. And that you shall be punished if you do not tell the truth ? Witness. Yes. The oath was then administered. 35 I'HE KING, AGAINST John M'Millan, James Burt, Andrew Burt, jun. Daniel Turner, James Aitken, of Falkirk, grocer, Andrew Dawson, in custody. Peter M'Callum. IT is ordered, that William Wright, the elder, Williant Wright, the younger, and James Dewar, prisoners confined in the castle of Stirling, on a charge of high treason, be ad- mitted witnesses for the prosecution ; and that the governor, or commanding officer of the garrison of the said castle, do forthwith convey the said William Wright, the elder, Wil- liam Wright, the younger, and James Dewar, before the Grand Jury, to give evidence on a bill of indictment against John M'Millan, and the seven other defendants, for high treason ; and, if the same be found a true bill by the Grand Jury, then that the said governor, or commanding officer, of the said garrison, do have the bodies of the said William Wright, the elder, William Wright, the younger, and James Dewar, in this Court, to give evidence on the trial of this indictment. On the motion of Mr Serjeant Hullock. By the Court, KNAPP. Lord President. Remember you are brought here as wit- nesses, and it is your duty to tell all you know, in answer to the questions that may be put to you. You are now at per- fect liberty to do so. No charge can ever be brought against you, as implicated in the matters as to which you will be exa- mined. Adjourned at half past eleven till three o'clock in the af- ternoon. 36 The Court met again at three o'clock the same afternoon. PRESENT. The same Commissioners. The Cryer opened the Court. The King against John M'Millan and Others. ORDERED, that Robert Wright, the younger, Walter Bain, and John N^col, be admitted witnesses for the Crown, and be taken before the Grand Jury to give evidence. The Grand Jury returned into Court ; and, their names being called over, they returned true bills against the follow- ing defendants : James Anderson, j James Rait, J- St Nlnlan's case. I George Lennox. N t In custody. n, -\ :. J Not in custody. William Crawford, George Gillies, Moses Gilfillan, Andrew Reid, Andrew M'Farlane, James Gunn, Robert Drew, Joseph Gettie. John M'Millan, James Burt, Andrew Burt, jun. Daniel Turner, James Aitken, of Falkirk, grocer, James Aitken, of Falkirk, wright, Andrew Dawson, Peter M'Callum. Camelon case. 37 Mr Knapp. My Lord, there are no other bills to put before the Grand Jury. Lord President. Gentlemen of the Grand Jury, I sin- cerely hope that your labours are closed ; but, having con- sulted with my brethren and the counsel for the Crown, I find that it is not possible for the Crown absolutely to dis- charge you from farther attendance, and that it is absolute- ly necessary for you to be present on the 6th of July, the time fixed for the arraignments ; but, in all probability, that will be matter of form only, and you will not be detained. Foreman of the Jury. I beg to state to your Lordship, that I am instructed by the Jury to mention, and I hope that in this we are not travelling beyond the strict line of our duty, that, in the course of the very grave examinations and deliberations in which we have been engaged, in hear- ing evidence on the bills before us, it appears to us, that there is one individual, not included in those bills, who does appear to us, most unquestionably, to be most deeply impli- cated in the transactions which have given rise to the present commission ; and that, in our opinion, if there yet be any mode by which the ends of justice may be further attained, by bringing that individual to trial, he ought to be prose- cuted. Lord President. The Jury have most undoubtedly dis- charged their duty in making this statement. Their duty is to inquire into all matters of treason that may be brought before them, and they have stated what came out in the course of that evidence. Mr Serjeant Hullock. There can be no objection to in- serting the name of the person alluded to in the bill which applies to him, for it must be one of the bills before the Jury. Or, if it be thought more regular and proper, we shall take care that he shall be indicted at the next term of the Court ; at the same time, the objection is very palpable to any delay. [The Judges consulted together for a short time.] Lord President. It occurs to us as more regular, for the Jury again to retire, and add the name of the individual to the Bill. Retire again, Gentlemen, with the bill to which you have alluded, and you will yourselves add the name of the person to whom you allude. The Jury then retired with the bill applicable to the Ca^ melon case, and shortly afterwards returned, having added, to it the name of John Johnston, who was then put to the bar. No other bills of indictment having been preferred, the Court stated to the Grand Jury, that their attendance would be required again on Thursday, the 6th July, at 10 o'clock in the forenoon. The defendant John Anderson being present, and answer- ing to his name as indicted, the Court, at his request, ap- pointed Messrs David Blackie and William Alexander, of Edinburgh, his joint solicitors, or agents ; and directed, that MessrsColin Daun and Robert Haldane, of Stirling, writers* should be permitted to act as assistant agents to the prisoners, during the absence of Messrs Blackie and Alexander. At the request of the said Anderson, James Moncreiff, and Henry Cockburn, Esquires, were assigned as his counsel ; and, in the event of either of those gentlemen not accepting the assignment, or not attending the arraignment or trial, the Court approved of Mungo Brown, Esq. as the counsel in the room of either of the two assigned counsel not accept- ing such assignment, or not attending. Copies of the indictment, the list of witnesses, and of the. jury, were then delivered to the said John Anderson in open Court. The defendants, John M'Millan, James Burt, Andrew Burt, the younger, Daniel Turner, James Aitken of Fal- kirk, grocer, James Aitken of Falkirk, wright, Andrew Dawaon, and John Johnston, being present, and severally answering to their names as indicted, the Court, at their re- quest, appointed Messrs David Blackie and William Alex- ander, their joint solicitors, or agents; and directed, that Messrs Colin Daun, and Robert Haldane, of Stirling, should be permitted to act as assistant agents to the several defend- ants, during the absence of Messrs Blackie and Alexander. At the request of the same last mentioned eight defend- ants, the Court assigned James Moncreiff, and Henry Cock- 39 burn, Esquires, as their counsel; and, in the event of either of those gentlemen not accepting the assignment, or not at- tending the arraignment, trial, or trials, the Court approved of Mungo Brown, Esq. as the counsel in the room of either of the two counsel not accepting such assignment, or not at- tending. The Court adjourned to Thursday, the 6th July, at ten o'clock in the forenoon. Thursday, 6th July, 1820. Court met, pursuant to adjournment, on the 24th June last. PRESENT. The LORD PRESIDENT, The LORD JUSTICE :CLERK, The LORD CHIEF-BARON. The Cryer opened the Court ; and the Clerk having call- ed over the names of the Grand Jury from the pannel, all the members appeared except Alexander Gartshore Stirling, Esq. whose attendance was excused by the Court ; a sur- geon's certificate of Mr Stirling's ill health having been pro- duced and read. Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, were then placed at the bar ; and, at the request of the prisoners Baird, Clelland, Murchie, and Hardie, the Court assigned Robert Hunter, Esq. as counsel for them in the room of John Peter Grant, Esq. At the request of the fourteen other defendants, included in the same indictment, the Court assigned Archibald Hope Cullen, Esq. as their counsel, in the room of Robert Hun- ter, Esq. The Clerk then proceeded to arraign the said Thomas M 4 - Culloch, and the seventeen other defendants, and the caption and indictment against them was read : ABSTRACT OF INDICTMENT. FIRST COUNT. Compassing and Imagining the Death of the King. Conspiring to devise Plans to'subvert the Con- stitution. Conspiring to levy War, and to subvert the Constitution. For publishing and posting up a Treasonable Address to the Inhabitants of Great Britain and Ireland, to incite the Soldiers of the King and other Subjects to Rebellion. For publishing and posting up Printed Ad- dresses to the Inhabitants of Great Britain and Ireland, stating the substance only of such Addresses, with similar intent as in third Overt Act. For composing, and printing, and posting up divers Addresses, containing solicitations to the Troops and Subjects of the King to levy War. For assembling together, and, whilst so assem- bled, making speeches to incite the Subjects to Rebellion. For purchasing and providing Arms, in order to attack the Soldiers of the King, and to make War against the King. For assembling and parading with Arms, and attacking the Houses of divers Subjects, and taking therefrom Arms and Ammunition, with similar intent as in the last Overt Act. For manufacturing Arms, with similar intent Counts. I. Overt Acts. 1. 2. 3. 4. 5. 6. 7. 8 9 41 Counts Overt Acts. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. II. III. IV. For training and drilling themselves and others, with similar intent. For levying War. For endeavouring to seduce the Troops of the King from their allegiance. For detaining and imprisoning divers Subjects, with intent, by duress, to compel them to join in levying War. For forcing divers Subjects to discharge and turn oft* their Workmen. For striking Work, and compelling and per- suading others to do the same. For sending Persons to England, to incite the liege Subjects of the King there to acts of Treason. For subscribing Money for the purpose of pro- curing Arms. For exhorting and persuading certain of the Lcge Subjects of the King to procure Arms, to be employed in Rebellion. For giving notice of Meetings to be held for the purpose of consulting as to the means of rai- sing War. SECOND COUNT. Levying War. THIBD COUNT. Compassing and Intending to Depose the King from the style, honour, and kingly name of the Imperial Crown of this Realm. With the same Overt Acts as in First Count. FOURTH COUNT. Compassing to levy War against the King, in order to compel him to change his measures. With the same Overt Acts as in First Count. 43. CAPTION. %; i'[ <[.' r'; i-i i : - ; i f*fff. tjctuuivtl.fo'u ' -^ Stirlingshire To wit. Be it remembered, that at a Spe- cial Session of Oyer and Terminer, of our sovereign Lord the King, of, and for the county of Stirling, holden at the town of Stirling, in the said county, on Friday, the twenty- third day of June,in thefirst year of the reign of our Sovereign Lord, George the Fourth, by the grace of God, of the united kingdom of Great Britain and Ireland King, Defender of the Faith, before Charles Hope, Esquire, President of the College of Justice, of our said Lord the King, in that part of the united kingdom of Great Britain and Ireland called Scotland ; the Right Honourable David Boyle, Esquire, Justice Clerk of our said Lord the King, in the aforesaid part of the said united kingdom ; the Right Honourable Sir Samuel Shepherd, Knight, Chief Baron of our said Lord the King, of his Court of Exchequer, in the aforesaid part of the said united kingdom ; the Right Honourable William Adam, Esquire, Chief Commissioner of the Jury Court in civil causes, in the aforesaid part of the said united kingdom ; and George Fergusson, Esquire, of Hermand ; and Adam Gillies, Es- quire, of Gillies ; two of the Commissioners of our said Lord the King, of Justiciary, in the aforesaid part of the united kingdom ; and others, their fellows, Justices, and Commis- sioners of our said Lord the King, assigned by letters patent of our said Lord the King, under his Great Seal of the uni- ted kingdom of Great Britain and Ireland, made by virtue of, and according to, the form of the Statute made in the seventh year of the reign of the Lady Anne, late Queen of Great Britain, &c., entitled, " An Act for improving the Union of the two Kingdoms," to them and others, and to any two or more of them directed (of whom one of them, the afore- said David Boyle, or the Justice Clerk for the time being ; George Fergusson and Adam Gillies, or the Commissioners of Justiciary for the time being, amongst others in the said letters patent named, our said Lord the King willed, should be one,) to inquire, by the oath of good and lawful men of the county of Stirling, of all high treasons, and misprisions of 43 high treason, within the county aforesaid, as well within Ik berties, as without, by whomsoever, and in what manner so- ever, and by whom, when, how, and after what manner done, committed, or perpetrated ; and of all other articles and CITT cumstances concerning the premises, and every of them, or any of them, in any manner whatsoever ; and the same high treasons, and misprisions of high treason, according to the form of the aforesaid Statute, to hear and determine by oath of The Honourable George Abercromby, Sir Thomas Li- vingstone, Baronet, Sir James Miles Riddel, Baronet, Peter Spiers, Esquire, William Morehead, Esquire, Ninian Lew- is, Esquire, Samuel Cooper, Esquire, James Bruce, Esquire, George Callander, Esquire, Francis Simpson, Esquire, Alexander Gartshore Stirling, Esquire, John Henderson, Doctor of Physic, John Baird, Esquire, John Kincaid, Es- quire, William Archibald Cadell, Esquire, Alexander Lit- tlejohn, Esquire, Patrick Muschet, Doctor of Physic, John Murray, Esquire, James Russell, Esquire, Duncan Robert- son, Esquire, Joseph Stainton, Esquire, Thomas Campbell Haggart, Esquire, and Alexander Ramsay, Esquire, good and lawful men of the county aforesaid, now here sworn, and charged to inquire for our said Lord the King, for the body of the said county, touching and concerning the premises in the said letters patent mentioned. It is presented in the man- ner and form that followeth ; that is to say, Indictment for High Treason First Count. Stirlingshire To wit. The Jurors for our Lord the King, upon their oath, present, that Thomas M'Culloch, late of Glasgow, in the county of Lanark, stock- ing weaver ; Andrew Hardie, late of the same place, wea- ver ; Benjamin Moir, late of the same place, labourer ; Allan Murchie, late of the same place, blacksmith ; Alex- ander Latimer, late of the same place, weaver ; Alexander Johnston, late of the same place, weaver ; Andrew White, late of the same place, bookbinder ; David Thomson, late of the same place, weaver ; James Wright, late of the same place, tailor; William Clackson, late of the same place, shoemaker, otherwise called William Clarkson, late of the same place, shoemaker; Thomas Pike, late of the same place, muslin-singer, otherwise called Thomas Pink, late of the same place, muslin-singer ; Robert Gray, late of the same place, weaver; James Clelland, late of the same place, smith ; Alexander Hart, late of the same place, cabinet-ma- ker : John Baird, late of the parish of Cumbernauld, in the county of Dumbarton, weaver ; John Barr, late of the pa- rish of Cumbernauld aforesaid, in the same county of Dum- barton, weaver ; William Smith, late of the parish of Cum- bernauld aforesaid, in the same county of Dumbarton, wea- ver; and Thomas M'Farlane, late of the parish of Cumber- nauld aforesaid, in the same county of Dumbarton, weaver ; being subjects of our said Lord the King, not having the fear of God in their hearts, nor weighing the duty of their allegiance, but being moved and seduced by the instigation of the devil, as false traitors against our said Lord the King, and wholly withdrawing the love, obedience, fidelity, and al- legiance, which every true and faithful subject of our said Lord the King should, and of right ought, to bear towards our said Lord the King, on the first day of April, in the first year of the reign of our Sovereign Lord, George the Fourth, by the grace of God, of the united kingdom of Great Britain and Ireland King, Defender of the Faith, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk, in the county of Stirling, in that part of the united kingdom of Great Britain and Ireland, called Scotland, maliciously and traitorously, amongst themselves, and together with divers other false traitors, whose names are to the said Jurors un- known, did compass and imagine the death of our said Lord the King, and to move and incite insurrection, rebellion, and war against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Bri- tain and Ireland called Scotland, and to subvert and destroy the legislature rule and government, now duly and happily established within this realm, and to bring and put our said o *grt Lord the King to death ; and in order to fulfil, perfect, and Act. bring to effect their most evil and wicked treason, and trea- 45 sonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Al- lan Murchie, Alexander Latimer, Alexander Johnston, An- drew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clel- land, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the said first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the pa- rish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ire- land called Scotland, maliciously and traitorously did assem- ble, meet, conspire, and consult amongst themselves, and to- gether with divers other false traitors, whose names are to the said Jurors unknown, to devise, arrange, and mature plans and means to subvert and destroy the government and constitution of this realm, as by law established ; and further %& to fulfil, perfect, and bring to effect, their most evil and Overt wicked treason, and treasonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Har- die, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Ro- bert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the said first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and nrms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and trai- torously did assemble, meet, conspire, consult and agree amongst themselves, and together with divers other false traitors, whose names are to the said Jurors unknown, to stir up, raise, make and levy insurrection, rebellion, and war, against our said Lord the King, within this his realm, 46 to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and to subvert and destroy the government and constitution of this realm, as by law established. And further to fulfil, perfect, and bring to effect their most evil and wicked treason, and treasonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander John- aton, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the United Kingdom of Great Britain and Ireland, called Scotland, maliciously and traitorously did publish, and cause, and procure to be pub- lished, divers printed papers, purporting to be addresses to the inhabitants of Great Britain and Ireland, and containing therein, in manner, and to the effect following ; that is to say, " Address to the Inhabitants of Great Britain and Ireland. Friends and Countrymen Roused from that torpid state in which we have been sunk for so many years, we are at length compelled, from the extremity of our sufferings, and the contempt heaped upon our petitions for redress, to assert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misrepresented by designing men, would have united all ranks) have reduced us to take tip arms for the redress of our common grievances. The nu- merous public meetings held throughout the country, has demonstrated to you that the interests of all classes are the same. That the protection of the life and property of the rich man is the interest of the poor man, and in return, it is the interest of the rich to protect the poor from the iron grasp of despotism ; for, when its victims are exhausted in the lower circles, there is no assurance but that its ravages will be continued in the upper ; for, once set in motion, it will continue to move till a succession of victims fall. Our principles are few, and founded on the basis of our constitu- tion, which were purchased with the dearest blood of our an- cestors, and which we swear to transmit to posterity unsul- lied, or perish in the attempt ; equality of rights (not of pro- perty) is the object for which we contend ; and which we consider as the only security for our liberties and lives. Let us shew to the world that we are not that lawless sanguinary rabble, which our oppressors would persuade the higher circles we are, but a brave and generous people, determined to be free. Liberty or death is our motto ; and we have sworn to return home in triumph, or return no more ! Soldiers ! shall you, countrymen, bound by the sacred obligation of an oath to defend your country and your King from enemies, whether foreign or domestic, plunge your bayonets into the bosoms of fathers and brothers, and at once sacrifice, at the shrine of military despotism, to the unrelenting orders of a cruel faction, those feelings which you hold in common with the rest of mankind ? Soldiers ! turn your eyes toward Spain, and there behold the happy effects resulting from the union of soldiers and citizens. Look to that quarter, and there behold the yoke of hated despotism broke by the una- nimous wish of the people and the soldiery, happily accom- plished without bloodshed and shall you who taught those soldiers to fight the battles of liberty refuse to fight those 01 your own country ? Forbid it, Heaven ! Come forward then at once, and free your country and your King from the power of those that have held them too, too long in thraldom. Friends and countrymen, the eventful period has now arri- ved where the services of all will be required for the for- warding of an object so universally wished, and so absolute- ly necessary. Come forward then, and assist those who have begun in the completion of so arduous a task, and support the laudable efforts which we are about to make, to replace to Britons those rights consecrated to them by Magna Chart* and the Bill of Rights, and sweep from our shores that cor- ruption which has degraded us below the dignity of man. Owing to the misrepresentations which have gone abroad 48 with regard to our intentions, we think it indispensibly ne- cessary to declare inviolable all public and private property ; and we hereby call upon all Justices of the Peace, and all others to suppress pillage and plunder of every description ; and to endeavour to secure those guilty of such offences, that they may receive that punishment which such violation of justice demands; In the present state of affairs, and during the continuation of so momentous a struggle, we earnestly request of all to desist from their labour, from and after this day, the first of April, and attend wholly to the recovery of their rights, and consider it as the duty of every man, not to recommence until he is in the possession of those rights which distinguishes the freeman from the slave ; viz. that of giving consent to the laws by which he is to be governed. We, there- * fore, recommend to the proprietors of public works, and all others to stop the one, and shut up the other, until order is restored, as we will be accountable for no damages which may be sustained, and which, after this public intimation, they can have no claim to. And we hereby give notice to all those who shall be found carrying arms against those who intend to regenerate their country, and restore its inhabitants to their native dignity, we shall consider them as traitors to their country, and enemies to their King, and treat them as such. By order of the committee of organization for form- ing a provisional government. Glasgow, April 1, 1820. Britons ! God, Justice, the wishes of all good men, are with us ; join together, and make it one cause, and the na- tions of the earth shall hail the day when the standard of liberty shall be raised on its native soil." With intent there- by, to solicit and incite the troops, soldiers, and other the liege subjects of our said Lord the King, to aid and assist in ma- king and levying, insurrection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and in subverting and destroying the go- vernment and constitution of this realm as by law establish- ed. And the said Thomas M'Culloch, Andrew Hardie, Ben- jamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnson, Andrew White, David Thomson, James Wright, 6 49 William Clackson, otherwise called William Clarkson, Tho- mas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, did then and there, to wit, on the said first day of April, in the first year of the reign aforesaid, and on the said other days and times, at the parish of Falkirk aforesaid, in the county of Stirling afore- said, in that part of the United Kingdom of Great Britain and Ireland called Scotland, with force and arms, malicious- ly and traitorously affix, set up, stick, and fasten, and cause to to be affixed, set up, stuck, and fastened to, and upon, di- vers walls and buildings, in divers public, open, and conspi- cuous places, with the intent that the same might be seen and read by the liege subjects of our said Lord the King, divers other printed papers, purporting to be addresses to the in- habitants of Great Britain and Ireland, containing therein, in the same manner, and to the same effect as is above sta- ted, and set forth as to the said printed papers in the former part of this overt act, particularly mentioned and set forth, with intent thereby to solicit and incite the troops and soldi- ers, and other the liege subjects of our said Lord the King, to aid and assist in making and levying insurrection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and in subvert- ing and destroying the government and constitution of this realm, as by law established : And further, to fulfil, perfect, *th and bring to effect their most evil and wicked treason, and treasonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, Janes Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clel- land, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as afore- said, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Fal- voi,. i. D 50 kirk aforesaid, in the county of Stirling aforesaid, in that part of the United Kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did publish, and cause and procure to be published, divers other printed papers, purporting to be " Addresses to the Inhabitants of Great Britain and Ireland;"" and stating therein, amongst other things, that they, the said false traitors, were at length com- pelled, from the extremity of their sufferings, and the con- tempt heaped upon their petitions for redress, to assert their rights at the hazard of their lives, and proclaim to the world the real motives which had reduced them to take up arms for the redress of their common grievances : That their prin- ciples were few, and founded on the basis of our constitution, which were purchased with the dearest blood of their ances- tors, and which they swore to transmit to posterity unsullied, or perish in the attempt : That equality of rights (not of property) was the object for which they contended, and which they considered the only security for their lives: That " Liberty or Death" was their motto : That they had sworn to return home in triumph, or return no more : And interrogating the soldiers, who the said false traitors therein stated were their countrymen, bound, *by the sacred obliga- tion of an oath, to defend their countrymen and their King from enemies whether foreign or domestic, whether they, the said soldiers, would plunge their bayonets into the bosoms of fathers and brothers, and at once sacrifice at the shrine of military despotism, to the unrelenting orders of a cruel fac- tion, those feelings which they held in common with the rest of mankind ; and recommending, that the soldiers should at once come forward, and free their country and their King from the power of those who held them too long in thraldom. In the present state of affairs, and during the continuation of so momentous a struggle, they, the said false traitors, ear- nestly requested of all to desist from their labour from and after the first day of April, and attend wholly to the reco- very of their rights ; and consider it as the duty of every man not to recommence, until he was in possession of those rights which distinguish the freeman from the slave, name- ly, that of giving consent to the laws by which he is to be 51 governed. They, the said false traitors, therefore, recom- mended to the proprietors of public works, and all others, to stop the one, and shut up the other, until order was restored, as they would be accountable for no damages which might be sustained, and which, after that public intimation, the said proprietors could have no claim to; and they there- by gave notice to all who should be found carrying arms against those who intended to regenerate their country, and restore its inhabitants to their native dignity, that they should consider them as traitors to their country, and enemies to their King, and treat them as such ; which said last men- tioned printed papers purported to be by order of the Committee of Organization for forming a Provisional Go- vernment, with intent thereby to solicit and incite the troops and soldiers, and others, the liege subjects of our said Lord the King, to aid and assist in making and levying insur- rection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and in subverting and destroying the government and constitution of this realm, as by law established. And the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Mur- chie, Alexander Latimer, Alexander Johnstone, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, did then and there, to wit, on the said 1st day of April, in the 1st year of the reign aforesaid, and on the said other days and times, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland, called Scotland, with force and arms, maliciously and traitorously affix, set up, stick, and fasten to and upon divers walls and buildings, in divers public, open, and conspicuous places, with the intent that the same might be seen and read by the liege subjects of our said Lord the King, divers other print- ed papers, purporting to be addresses to the inhabitants of Great Britain, and Ireland, stating therein, among other 52 things, in the same manner, and to the same effect, as ifr above stated as to the said printed papers in the former part of this overt act, particularly mentioned, with intent there- by, to solicit and incite the troops, soldiers, and others, the liege subjects of our said Lord the King, to aid and assist in making and levying insurrection, rebellion, and war against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and in subverting and destroying the government and constitution of this realm, as by law es- 5th tablished. And further to fulfil, perfect, and bring to effect ^ ve t their most evil and wicked treason, and treasonable compass- ing and imagination aforesaid, they, the said Thomas M e - Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnstone, Andrew White,- David Thomson, James Wright, William Clackson, other- wise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on: the said 1st day of April, in the 1st year of the reign afore- said, and on divers other days and times, as well before a& after that day, with force and arms, at the parish of Fal- fcirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did compose, write, and print, and cause and procure to be composed, written, and printed, with intent to publish the same, and maliciously and traitorously did publish, and cause to be pub- lished, divers addresses, proclamations, declarations, and writings, containing therein divers solicitations and incite- ments to the troops, soldiers, and liege subjects of our said Lord the King, to make and levy, and to aid and assist in making and levying insurrection, rebellion, and war, against our said Lord the King, within this his realm, to wit, with- in that part of the united kingdom of Great Britain and Ireland called Scotland, and in subverting and destroying the government and constitution of this realm, as by law es- tablished ; and did, then and there, maliciously and traitor- 53 ously affix, set up, stick, and fasten to and upon divers walls and buildings, in divers open, public, and conspicuous places, with the intent that the same might be seen and read by the troops, soldiers, and other the liege subjects of our said Lord the King, divers other addresses, proclamations, declarations, and writings, containing therein divers solicitations and in- citements to the troops, soldiers, and other the liege subjects of our said Lord the King, to make and levy, and to aid and assist in making and levying insurrection, rebellion, and war against our said Lord the King, withia this his re- alm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and in subverting and destroying the government and constitution of this realm, as by law established. And further, to fulfil, perfect, and bring 6t h to effect their most evil and wicked treason, and treasonable Overt compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Mur- chie, Alexander Latimer, Alexander Johnstone, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, toge- ther with divers other false traitors, whose names are to the said Jurors unknown, on the 1st day of April, in the 1st year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms^ at the pa- rish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did as- semble themselves together, with divers other liege subjects of our said Lord the King, to a great number, to wit, to the number of fifty and more, whose names are to the said Ju- rors unknown ; and being so assembled together, did, then and there, remain and continue so assembled together, for a long space of time, to wit, for the space of one hour then next following the time of their so assembling ; and whilst they remained so assembled, by divers malicious, seditious, inflammatory and treasonable speeches, did, then and there, 54 endeavour to move, incite, cause, and procure the said last mentioned liege subjects of our said Lord the King, to raise, make, and levy rebellion, insurrection, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland call- ed Scotland, and to subvert and destroy the government and 7th constitution of this realm, as by law established. And further, Overt t o fulfilj perfect, and bring to effect, their most evil and wicked treason, and treasonable compassing and imagination afore- said, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alex- ander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clark- son, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the said 1st day of April, in the 1st year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, maliciously and traitor- ously did purchase, procure, provide, and have, divers large quantities of arms, to wit, guns, muskets, blunderbusses, pistols, swords, bayonets, pikes, pike-heads, and divers large quantities of ammunition, to wit, gun-powder, leaden bullets, slugs, and shot, with intention therewith to arm and array themselves and divers other false traitors, in order to attack, fight with, kill, and destroy the soldiers and troops of our said Lord the King, and other his liege and faithful subjects, and to raise, make, and levy insurrection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and to subvert and destroy the government and constitution of this realm, as by law csta- 8th blished. And further to fulfil, perfect, and bring to effect Overt their most evil and wicked treason and treasonable compass- ct * ing and imagination aforesaid, they, the said Thomas M'- Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, 55 Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, other- wise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the said 1st day of April, in the 1st year of the reign aforesaid, and on divers other days and times, as well before as after that day, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, maliciously and traitorously, together with divers other false traitors, whose names are to the said Jurors unknown, then and there assembled, with divers offensive weapons, to wit, guns, pistols, swords, bay- onets, pikes, pitch-forks, sticks and staves, did parade and march with great noise and violence in, through, and along divers public high-ways, towns, villages, and places, and did attack, beset, and enter into the houses and habitations of divers liege subjects of our said Lord the King, and did seize and take divers large quantities of arms and ammunition, to wit, 100 muskets, 100 pistols, 100 swords, 100 bayonets, 100 pikes, 100 guns, and other offensive weapons, 1000 bullets, 1000 slugs, 20 pounds weight of shot, 200 cartridges, and 100 pounds weight of gun-powder, from and out of the same houses, and habitations, with intent, by and with the said last mentioned arms and ammunition, further to arm themselves and other false traitors, in order to attack, fight with, kill, and destroy the soldiers and troops of our said Lord the King, and other his liege and faithful subjects, and to raise, make and levy insurrection, rebellion and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland, called Scotland, and to subvert and destroy the gor vernment and constitution of this realm, as by law establish- ed. And further to fulfil, perfect, and bring to effect their 9th most evil and wicked treason, and treasonable compassing Overt and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, DavidThom,- 56 son, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the 1st day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did manufacture, and cause, and procure, and or- der to be manufactured, divers pikes, pike-heads, pike-shafts, and pike-handles, with intent therewith to arm themselves, and other false traitors, for the purpose of attacking and fighting with, killing and destroying the troops and soldiers of our said Lord the King, and other faithful subjects of our said Lord the King, and of making and levying insurrection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom loth of Great Britain and Ireland called Scotland. And further Overt t o fulfil, perfect, and bring to effect their most evil and wicked treason, and treasonable compassing and imagination, afore- said, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alex- ander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clark- son, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days, and times, as well before as after that day, with force and arms at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, maliciously and traitorous- ly did train and drill, and cause and procure to be trained and drilled, as well themselves, as divers other false traitors, against our said Lord the King> whose names are to the said Jurors unknown ; and maliciously and traitorously did submit themselves to be trained and drilled, and maliciously and trai- torously did appoint divers false traitors, whose names are to the said Jurors unknown, to be officers and commanders over themselves and divers other false traitors, against our said Lord the King, whose names are to the said Jurors unknown ; and maliciously and traitorously did submit themselves to be appointed as such officers and commanders as aforesaid, with intent the more effectually to enable themselves, and divers other false traitors, to attack, fight with, kill and destroy the soldiers and troops of our said Lord the King, and other his liege and faithful subjects ; and to make, raise, and levy insurrection, rebellion, and war against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scot- land, and to subvert and destroy the government and con- stitution of this realm, as by law established. And further, nth to fulfil, perfect, and bring to effect their most evil and wicked Overt treason and treasonable compassing and imagination afore- said, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alex- ander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clark- son, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, together with divers other false traitors, whose names are to the said Jurors unknown, armed and arrayed in a warlike manner, that is to say, with guns, pistols, swords, bayonets, pikes, pike-heads, and other weapons, maliciously and traitorously did ordain, prepare* levy, and make war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland. And further 12th Overt to fulfil, perfect, and bring to effect their most evil and ^ ct . wicked treason, and treasonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alex- ander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clark- son, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, maliciously and traitorous- ly did endeavour to seduce divers troops and soldiers of our said Lord the King from the duty and allegiance to our said 13th Lord the King. And further, to fulfil, perfect, and bring Overt to e ff ec t their most evil and wicked treason, and treasonable Act. compassing and imagination aforesaid, they, the said Tho- mas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk afore- said, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scot- land, maliciously and traitorously did detain and imprison divers liege subjects of our said Lord the King, with intent then and there, by duress of imprisonment, to compel the same liege subjects to join and accompany them, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Al- lan Murchie, Alexander Latimer, Alexander Johnston, An- drew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, 59 otherwise called Thomas Pink, Robert Gray, James Clel- land, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, in their said wicked treason, and treasonable compassing and imagination aforesaid. And uth further, to fulfil, perfect, and bring to effect their most evil Overt A.ct and wicked treason, and treasonable compassing and imagi- nation aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Lati- mer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Ro- bert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did force, compel, oblige, induce, and persuade, and cause to be forced, compelled, obliged, induced, and persuaded, divers other liege subjects of our said Lord the King, who then and there had and employed in their service divers great numbers of other liege subjects of our said Lord the King, as working persons and labourers, in various oc- cupations, in which such last mentioned working persons and labourers worked for the maintenance and support of them- selves and their families, to discharge and turn off, out of work and employment, the said working persons and labour- ers. And further, to fulfil, perfect, and bring to effect their 15th most evil and wicked treason, and treasonable compassing^ ert and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexan- der Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise call- ed William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first clay of April, 60 in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously did strike, abandon, and give up their work and labour, in which they respectively worked and laboured for the maintenance and support of themselves and their fami- lies; and did desert, cease, and abstain from doing any work or labour, for the maintenance or support of themselves or their families; and maliciously and traitorously did force, compel, oblige, induce, and persuade, and cause and procure to be forced, compelled, obliged, induced, and persuaded, divers other liege subjects of our said the Lord the King, being persons who worked and laboured for the maintenance and support of themselves and their families, to strike, aban- don, and give up their work and labour, and to desist, cease, and abstain from doing any work or labour for the mainte- nance and support of themselves or their families ; and did then and there, as such false traitors as aforesaid, malicious- ly and traitorously hinder, obstruct, and prevent divers works and manufactories of divers liege subjects of our said Lord 16th ^ e -^ n fr m being proceeded in, and carried on. And Overt further, to fulfil, perfect, and bring to effect, their most evil Act and wicked treason, and treasonable compassing and imagi- nation aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Lati- mer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Ro- bert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, together with divers other false trai- tors, whose names are to the said Jurors unknown, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid in the county of Stirling aforesaid, in that part of the united king- dom of Great Britain and Ireland, called Scotland, malicious- 61 ly and traitorously did send and convey, and cause and pro- cure to go, and to be sent and conveyed from divers places, in that part of the united kingdom of Great Britain and Ireland called Scotland, to divers towns, villages, and other places, as well in that part of the said united kingdom call- ed Scotland, as in that part of the said united kingdom call- ed England, divers other false traitors, whose names are to the said Jurors unknown, in order that the said last mention- ed false traitors might procure and incite liege subjects of our said Lord the King, in the said towns, villages, and places, in the same parts of the said united kingdom, to join with, and aid, and assist them, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thom- son, James Wright, William Clackson, otherwise called Wil- liam Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird* John Barr, William Smith, and Thomas M'Farlane, in their evil and wicked treason, and treasonable compassing and ima- gination aforesaid. And further, to fulfil, perfect, and bring to effect, their most evil and wicked treason, and treasonable Overt compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, other- wise called William Clarkson, Thomas Pike, otherwise call- ed Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign aforesaid, and on divers other days and times, as well before that day as after, with force and arms, at the Parish of Falkirk aforesaid, in the coun- ty of Stirling aforesaid, in that part of the united kingdom of Great Britain called Scotland, maliciously and traitorously did subscribe, contribute, pay, and cause and procure to be subscribed, contributed, and paid, divers sums of money, as well for the purpose of printing, publishing, procuring, and circulating divers seditious, inflammatory, and treason- able proclamations, addresses, and other writings and print- 62 ings, with intent to encourage and incite the troops and liege subjects of our said Lord the King to insurrection and re- bellion against our said Lord the King, as of purchasing and procuring with the said sums of money, arms and ammuni- tion, to wit, guns, muskets, bayonets, pikes, pike-heads, pike-shafts, gunpowder, leaden bullets, slugs, and shot, with intent to arm themselves and divers other false traitors, with the said last mentioned arms and ammunition, in order to attack, fight with, kill, and destroy the soldiers and troops of our said Lord the King, and other his liege and faithful subjects, and to raise, make, and levy, insurrection, rebellion, and war against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and to subvert and destroy the government and constitution of this realm, 18th as by law established. And further, to fulfil, perfect, and Overt b rm g f o e ff ec t their most evil and wicked treason and trea- sonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Al- lan Murchie, Alexander Latimer, Alexander Johnston, An- drew White, David Thomson, James Wright, William. Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the 1st day of April, in the first year of the reign afore- said, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scot- land, maliciously and traitorously did give and cause to be given notice to divers persons of meetings to be held for the purpose of consulting upon the means of raising war and re- bellion against our said Lord the King within this his realm, to wit, within that part of the united kingdom of Great Bri- tain and Ireland called Scotland ; and did summon, request, and require, and cause to be summoned, requested, and re- 19th quired, divers persons to attend at the said several meetings, Act. f r the purpose last aforesaid. And further, to fulfil, per- 63 feet, and bring to effect their most evil and wicked treason, and treasonable compassing and imagination aforesaid, they, the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander John- ston, Andrew White, David Thomson, James Wright, Wil- Jiam Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, as such false traitors as aforesaid, on the first day of April, in the first year of the reign foresaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ire- land called Scotland, maliciously and traitorously did exhort, encourage, persuade, and incite, as well divers liege subjects of our said Lord the King, whose names are to the said Ju- rors unknown, as divers other false traitors, whose names are also to the said Jurors unknown, to procure, provide, and possess themselves of, and with arms, to be employed by such last-mentioned subjects and traitors, in making insur- rection, rebellion, and war, against our said Lord the King, within this his realm, to wit, within that part of the united kingdom of Great Britain and Ireland called Scotland, and subverting and destroying the government and constitution of this realm, as by law established, in contempt of our said Lord the King and his laws, to the evil example of all others, contrary to the duty of the allegiance of them, the said Tho- mas M'Culloch, Andrew Hardie, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, against the form of statute in such case made and provided, and against the peace of our said Lord the King, his crown and dignity ; and the Jurors aforesaid, jj upon their oath aforesaid, do further present, that the said Count Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Al- 64 Ian Murchie, Alexander Latimer, Alexander Johnston, An- drew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clel- land, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, being subjects of our said Lord the King, and not having the fear of God in their hearts, nor weighing the duty of their allegiance, but being moved and seduced by the instigation of the devil, as false traitors against our said Lord the King, and wholly with- drawing the love, obedience, fidelity, and allegiance, which every true and faithful subject of our said Lord the King should, and of right ought to have, towards our said Lord the King, on the fifth day of April, in the first year of the reign aforesaid, with force and arms, at the parish of Fal- kirk /aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, together with divers other false traitors, whose names are to the said Jurors unknown, arrayed and armed in a warlike manner, that is to say, with guns, mus- kets, blunderbusses, pistols, swords, bayonets, pikes, pike- heads, pitch-forks, clubs, and other weapons, being then, and unlawfully, maliciously, and traitorously assembled to- gether against our said Lord the King, wickedly, malicious- ly, and traitorously, did levy and make war against our said Lord the King, within this his realm, to wit, within that part of the United Kingdom of Great Britain and Ireland called Scotland ; and being so then and there assembled together, arrayed, and armed against our said Lord the King, as aforesaid, did then and there, to wit, on the said fifth day of April, in the first year of the reign aforesaid, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously parade and march in a hostile manner, in and through divers towns, villages, places, and public highways ; and did then and there, to wit, on the said fifth day of April, in the first year of the reign aforesaid, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling 11 65 aforesaid, in that part of the united kingdom of Great Bri- tain and Ireland called Scotland, maliciously and traitor- ously array and set themselves in warlike and military order, battle, and array, against divers troops, soldiers, and faith- ful subjects of our said Lord the King, then and there being ; and did then and there, to wit, on the said fifth day of April, in the first year of the reign aforesaid, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the United Kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously, with guns and pistols, and other fire-arms, then and there loaded with gunpowder and leaden bullets, and with swords, bayonets, pikes, pike-heads, pitch-forks, and other offensive weapons, shoot and fire at, charge, thrust, strike at, and wound the said troops, soldiers, and faithful subjects of our said Lord the King, so then and there being as aforesaid ; and did then and there maliciously and traitor- ously attempt and endeavour, by force and vi^ence, to sub- vert and destroy the government and constitution of this realm, as by law established, in contempt of our said Lord the King, and his laws, to the evil example of all others, contrary to the duty of the allegiance of them, the said Tho- mas M'Culloch, Andrew Hardie, Benjamin Moir, Allen Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clack- son, otherwise called William Clarkson, Thomas Pike, other- wise called Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his crown and dignity. Third Count. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allen Mur- chie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clelland, Alex- VOL. I. 66 ander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, being subjects of our said Lord the King, not having the fear of God in their hearts, nor weigh- ing the duty of their allegiance, but being moved and sedu- ced by the instigation of the devil, as false traitors against our said Lord the King, and wholly withdrawing the love, obedience, fidelity, and allegiance, which every true and faithful subject of our said Lord the King should, and of right ought to bear, towards our said Lord the King, on the first day of April, in the first year of the reign afore- said, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ireland called Scotland, maliciously and traitorously amongst themselves, and together with divers other false traitors, whose names are to the said Jurors unknown, did compass, imagine, in- vent, devise, and intend to deprive and depose our said Lord the King of and from the style, honour, and kingly name of the Imperial Crown of this realm. (The indictment then states the same nineteen overt acts charged in the first count.) Fourth Count. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Thomas M'Culloch, Andrew Hardie, Benjamin Moir, Allen Mur- chie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clack- son, otherwise called William Clarkson, Thomas Pike, otherwise called Thomas Pink, Robert Gray, James Clel- land, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, being subjects of our said Lord the King, and not having the fear of God in their hearts, nor weighing the duty of their allegiance, but being moved and seduced by the instigation of the devil, as false traitors against our said Lord the King, and wholly with- drawing the love, obedience, fidelity, and allegiance, which every true and faithful subject of our said Lord the King should, and of right ought to have, towards our said Lord the King, on the first day of April, in the first year of the 67 reign aforesaid, and on divers other days and times, as well before as after that day, with force and arms, at the parish of Falkirk aforesaid, in the county of Stirling aforesaid, in that part of the united kingdom of Great Britain and Ire- land called Scotland, maliciously and traitorously, together 1 with divers other false traitors, whose names are to the said Jurors unknown, did compass, imagine, invent, devise, and intend to levy war against our said Lord the King, within this realm, in order, by force and constraint, to compel him to change his measures and counsels. (The indictment then states the same nineteen overt acts charged in the first and third counts.) Mr Knapp. Thomas M'Culloch, are you guilty, or not guilty ? Mr Cullen.-My Lord President, as counsel for the un- fortunate men now at the bar, I am anxious, with the permis- sion of the Court, to make a very few observations upon ond part of this indictment, before the prisoners are called upon to plead. And, I trust the Court will give me all the indul- gence, which, in truth, I require so much, while I venture to offer myself to their notice. I need not say that I feel placed in a very delicate situation. For the first time, I find nryself preparing to speak before a Court, the nature and proceedings of which are indeed novel in this part of the island. With the law that regulates cases which come be* fore it, I am bound, as every Scotch lawyer is bound, to make himself acquainted, since the English law of Treason, by an Act of Queen Anne, subsequent to the Union, has been made the Law of Treason in Scotland. This I have, therefore, done to the best of my abilities. But with the forms of procedure, the rules of evidence, and many other matters, which are regulated by the law of England, it can- not be expected that I should know almost any thing. Never- theless, having the interest of my clients deeply at heart, and anxious to discharge my duty faithfully towards them, and towards the Court who have appointed me to act for these men, I shall, without further delay, proceed to offer such ob- servations as have occurred to me, applicable to the present occasion. 68 It is now that the prisoners are to be arraigned ; in other words, are to plead to the Indictment. If any matters occur to them which can be offered in the shape of pleas, besides the general plea of Not Guilty, it is now that they are called upon to state these to the Court. The pleas which it is proper for a prisoner to offer at his arraignment, are of different kinds. Such as, 1. Pleas to the Jurisdiction. 2. Demurrers. 3. Dilatory Pleas ; which may either be declinatory of the trial, or in abatement. 4. Pleas in Bar ; or, 5. Pleas to the Mat- ter ; i. e. A general plea of Not Guilty, or a special plea. I have no plea to offer for the prisoners to the jurisdiction of this Court ; neither have I any plea in bar. I have no spe- cial plea, nor any plea declinatory of the trial. In short, I am either to offer a general plea of Not Guilty, or I am to plead in abatement. The latter is the course which I at pre- sent intend to adopt, and my plea is founded upon what hum- bly appears to me to be an error in laying the place of this in- dictment. It appears to me, with great submission, to be laid too generally the description does not seem to be sufficient- ly definite. This is an objection to the indictment, which, if well found- ed, would, in ordinary cases, induce the Court to quash it at the arraignment ; but in trials for High Treason, it may be otherwise. In these, I am aware that the Court are not in the practice to quash an indictment, but on very important grounds. All objections here are in general reserved to be stated in arrest of judgment. Accordingly, in the Statute seventh William III. c. 3, which regulates the proceedings in trials for High Treason, mention is particularly made of those matters which must be pleaded in abatement, and at no other time, leaving the inference that all other pleas should be pleaded in arrest of judgment. In this statute it is laid down, that " no Indictment for High Treason shall be quash- ed for mis- writing, mis-spelling, false or improper Latin, un- less such exceptum be made before evidence led." And, as to quashing indictments generally, it is laid down by Hawk- ins, book II. c. 25. 148, " That, by the Common Law, the Court may, in discretion, quash any indictment for any such insufficiency, either in the caption or body of it, as will make any judgment, whatsoever given, upon any part of it, 69 against the defender, erroneous ; yet it seems that judges are in no case bound ex debito justitioe^ to quash an indictment, but may oblige the defendant either to plead or to demur to it ; and this they generally do where it is for a crime of an enormous or public nature." The present trial is for a crime undoubtedly of an enor- mous and public nature, and the Court may oblige my clients either to plead or to demur it. Since the objection to the in- dictment now offered to be pleaded in abatement, does not fall under any of those comprehended in the Statute of Wil- liam, the Court may refuse to give effect to it, and may re- serve it to be stated in arrest of judgment. But, in truth, whether effect is to be given to it or not, it is my duty to state it, at least at present, because, if not pleaded now in point of form, I may be barred from pleading it afterwards in arrest of judgment. Therefore, if your Lordship desires that I should enter fully into the objection, I am prepared, I hope, to do sot The Lord President. We cannot judge of any thing, till we hear what the objection is ; and the Court are most will- ing to hear your objection now ; and I beg it may be stated. Mr Cullen. Then, my Lord, as I formerly hinted, my objection is to the manner in which the place is laid in this indictment. The crime charged in this indictment, is alleged to have been committed " at the parish of Falkirk, in the county of Stirling" Now, the prisoner at the bar, who has been called upon to plead to this indictment, craves to be al- lowed to plead in abatement, that this is too indefinite a de- scription of the place ; that the " vill," or " small town," in which, or near which, the crime was committed, ought to be specifically laid down. In other words, that, if a parish con- sist of several " vills? the particular vill, in point of law, ought to be distinguished, otherwise the parish, as generally laid, will be presumed to consist of but one vill, until the contrary be proved. This I hope immediately to shew youi Lordship, is laid down as the law by those celebrated law- yers, who wrote formerly on the subject, and by the more modern and recent writers, who have lately published upon the practice as it now is. 70 A " vill^ I may observe, is described in Tomlin's Law Dictionary, a book of late authority, to be " the out-part of a parish, consisting of a few houses, as it were separated from it." " Villa est ex pluribus mansionibus vicinata et col- lata ex pluribus vicinis." He further says, " The word town or vill is now, by the alteration of times and language, be- come a general term, comprehending under it the several species of boroughs and common towns." Such being the meaning of the word vill that it may be now synonimous with a town ; the fact which I would offer to prove is, that the parish from which the venue is taken in this indictment, consists of more than one vill that it, in truth, consists of seven different towns, some of them of con- siderable extent ; and this being the fact, I humbly main- tain, in point of law, that it ought to have been stated in this indictment, in what particular town, or near what particular town, the crime charged was committed. I shall now direct the attention of the Court to the autho- rities by which I am supported. And first, Lord Hale, vol. II. c. 25, p. 180, says generally, that, " regularly the vill, or hamlet and county, must be expressed in the indict- jnent;" and immediately he qualifies this as to certain crimes, by adding, that " in some crimes no vill need be named, as upon an indictment of barratry," for reasons which he there specifies. On this subject, however, Lord Hale is not so full as an author who wrote subsequently, and who is also one of the first authorities in the law of England I allude to Hawkins. That learned writer, at book II. c. 23. 92, expressly says : " Also, if a fact done in a vill, within a pa- rish, which contains divers vills, be in the count, in an ap- peal alleged generally in the parish, or a fact done in a city, which contains divers parishes, be in the count, in an appeal, alleged generally in the city, it seems that the defendant may plead such matter in abatement, for otherwise he could take no advantage of the insufficiency of the allegation, because the place named, as it stands in the record, must, till the con- trary be shewn, be intended to contain no more than one town or parish." 71 This passage is express on the point, and, moreover, here it may be observed, that Hawkins speaks of " town" as sy- nonimous to " vill," at the conclusion of the passage, It is true this occurs under the head of appeals ; but the very same doctrine applies, in this particular, to them as to indictments, which appears from a passage in a subsequent part of the work, by the same author, relating to the sub- ject of indictments, at book II. c. 25. 85, where, treat- ing of the manner in which the place ought to be laid, in an indictment, as to vills and parishes, he refers the reader, for these matters, to the very passage formerly quoted, " for a fuller consideration of them." The very same argument may be used in the case of out- lawry, before the exigent has been awarded, if the same er- ror occurred in the addition to a prisoner ; and this under the Statute of Additions. See Hawkins, book II. c. 23. 104 ; also book II. c. 25. 72. But I am unwilling to detain your Lordships by entering upon this argument of analogy, particularly since the point is so clearly laid down as applicable to the place of the indictment, which is the only matter now before the Court. The next authority to which I would request the atten- tion of your Lordships, is a case in Salkeld's Reports, vol. I. p. 59. It is the case of " Wilson, versus Laws. 11 Tr. Term, sixth William and Mary, in which, after several exceptions taken, it was ruled by the Court, among various other mat- ters, " 4thly, That the fact is well alleged in a parish, though the statute of Gloucester requires the viil should be set forth, for the parish shall be intended a vill ; and though there may be more than one vill in a parish, that shall never be sup- posed : And, therefore, if the case happens to be so, it must come of the other side to shew it." This, with great sub- mission, appears to me to be directly in point. The place of this indictment is laid in a parish, which by law is suffi- cient, unless the defendant can shew that the parish consists of more vills, or towns, than one ; in which case, the prose- cutor is bound to specify more particularly in what part of the parish the crime alleged was committed. 72 Besides, there is another set of individuals about to be arraigned at this bar immediately, who are charged with ha- ving committed the same crime of high-treason within the same parish, without any greater specification as to time, place, or circumstances, than is given to those who now stand before your Lordships. How are my clients now at the bar to distinguish betwixt their case and that of the men who are to follow them in the order of arraignment ? In the law of Scotland, such a loose, vague, and indefinite charge would not be suffered to stand for one moment before a criminal court ; but the practice may be different in Eng- land. I have endeavoured to point out what the law ap- pears to be from the authorities I have quoted ; and that law seems to warrant no such indefinite charge as appears on the face of the present indictment. From the case also which I have quoted, the subsequent practice seems to have been in conformity with the law, as laid down by Hale and Hawkins. In order to ascertain the practice of late years in England, I have looked into the more recent writers on the subject, and I find them all directly supporting me in what I have endeavoured to maintain. Mr Chitty, in his " Practical Treatise on the Criminal Law," lays it down expressly as recent practice, that " wherever the place is generally al- leged, the law will intend it to be a vill, unless the contrary appears on the record ; and, therefore, where a parish is mentioned which contains several vills, this will never be supposed, but must be pleaded in abatement." Vol. I. p. 197. And he cites many authorities, which, however, it is needless to enlarge upon ; as Co. Lit. 125, and 6 Co. 14, b ; 1 Burr. 337. Another late writer, whose authority as a living author is of no small weight, I understand, with English lawyers, I mean Mr Starlcie, lays down the same rule of practice in his " Treatise on Criminal Pleading." At p. 59, vol. I. of that book, he states, that " whenever the place is generally al- leged, the law will intend it to be a vill, unless the contrary appear in the record. If, therefore, a fact done in a vill within a parish which contains several vills, be alleged to have been done at the parish generally, it will be intended that the parish contains but one vill ; and therefore, to take advantage of the defect, the defendant must plead in abate- ment." This writer also, in treating of the Statute of Addi- tions, lays down the same doctrine as applicable to the addi- tion of a prisoner in a case of outlawry before the exigent is awarded, from which an argument in analogy is offered, but which I abstain from enlarging upon, as I fear I have al- ready detained the Court unnecessarily long. I therefore shall conclude by stating, that I am in a situ- ation to prove, that the parish of Falkirk, which is laid ge- nerally as the place at which the crime charged in the indict- ment was committed, consists of a variety of vills ; or, as Tomlin says, they may now, from the alteration of times and language, be denominated " common towns." It is a parish of very unusual extent, and there are no less than seven dif- ferent towns in it, of one description or another. These are Falkirk, Grahamstone, Beansford, Lawrencetown, Camelon, Carronshore, and Grangemouth, all in the parish of Falkirk. Now, I submit, that this indictment ought to have specified to which of these different towns the crime charged had a reference. It ought to have pointed out more specifically in what part of the parish the crime was committed, in what vill, or near what vill ; and not having done so, I maintain that, in point of law and practice, (though of the latter I speak with peculiar diffidence,) this indictment ought to be quashed. I cannot sit down without apologizing to the Court for ha- ving detained them so long. But I felt that I had a duty to perform towards these unfortunate men, paramount to any feelings of delicacy, and I have discharged it as well as I was able. If there be any thing in the objection I have en- larged upon, your Lordships will not fail to give effect to it ; if, on the contrary r there be nothing, you will at least do me the justice to be assured, that I have stated this objection from the best of motives, and that nothing but the interest of the prisoners at the bar, which I feel deeply, could have in- duced me to encroach so long upon your time and patience. Lard President.- The objection has been extremely well stated, Mr Cullen, and you have done your duty. 6 74 Mr Serjeant HullocJc.In rising to answer what has been said, I shall not occupy much time ; and I may venture to assert, without fear of contradiction, that this is the first time such an objection was ever made. There was no occasion for the learned gentleman's apolo- gy, for his industry and learning have enabled him to collect all that could be said on the subject. But, I say to your Lordships, that if the place is wrong laid in this indictment, there has not been one indictment since I belonged to the profession (and I speak in the hear- ing of another person, one of your Lordships, whose know- ledge on the subject is unquestionable)^ - there has not been an indictment heard and tried, which has not been laid as in this indictment, and no such objection was ever brought for- ward except in one instance, where it was repelled. The reasons upon which this objection has been founded, has long ceased to operate in the law of England. Formerly it was necessary to summon the array from the " vill," or vici- nage of the place where the crime charged was committed, and it was a challenge to the array, if not so summoned ; and the law continued so, in point of fact, for a long period, in crimi- nal and civil proceedings. But inasmuch as it is now notori- ous to every one that the juries are not summoned from the " vill," or vicinage, but are not even summoned from the parish in which the " vill" is situated, the rule, in point of fact, has so far ceased, that now it is held in England that a venue laid in a county is sufficient. The reason having ceased, the law ought to cease with it. What is the objection here ? It is founded on two autho- rities. Hale and Hawkins are great authorities, men of high rank, talents, and legal knowledge. But the learn- ed Counsel will excuse me, if I beg leave to say that the statements of Mr Chitty, or of Mr Starkie, are not to be considered as authorities. I would as soon take the dictum of the learned Counsel himself, as that of any living autho- rity. They both rest on an authority, but they do not go to any legal principle; and therefore, if the authority is well founded, or former practice has been deviated from, they just leave the matter where they took it up ; they do 75 nothing but state what they find in the old books upon the subject. The learned Counsel misconceived a case which he cited : That was the case of an appeal ; and it will be found, on a minute investigation into the subject, that the decision was not such as was represented. And in appeals, there is infi- nitely greater strictness required than in an indictment. The case referred to was no decision of the point in question, but merely, that if it was an objection, it was to be stated in abatement. (Here Mr Serjeant Hullock read the report in Salkeld at length.) The objection, if founded at all, is bottomed on, and must be sustained by, the quotations from Hale and Hawkins. In point of practice, there never was an indictment drawn in which it was not alleged in this way. Are we bound to prove the overt act in the parish where it is laid ? By law, if we prove it within the county, it is enough. Then, upon what principle of law, or of common sense, (upon which the law is founded) can it be contended that the place in this indictment should have been more spe- cifically described ? There is no such thing as a township in Scotland. A vill in England, is not three or four houses. It means a place where there is a constable. The whole basis, therefore, of the argument fails. I speak in the hearing of those who know the law well. A vill, I say, is not merely five or six houses. Lord President. Suppose the facts were stated to have happened in the open country ? Mr Hullock. True; and there is no such thing as a vill in Scotland. In England, vitl and township are synoni- mous of the same legal extent and meaning. There must be a constable ; and where you point out a constable, there is a distinct vill. The Lord Chief Baron. I doubt, Mr Cullen, whether there be any thing in Scotland analogous to a " vill" in England. Mr CW/en.Your Lordship has drawn my attention to Mr Hullocfs argument of analogy. If a vill, or town- 76 ship, in order to be entitled to that importance, requires a constable, there are various such townships in the parish of Falkirk. We are in a situation to prove, that in the parish of Falkirk there are different towns, some of which have been erected into baronies ; and, in analogy, is not a baron-bail- lie to be considered a sufficient officer ? And will not a ba- rony then be considered a sufficient " vill" in the eye of the law of England ? Mr Serjeant Hullock. The question, I apprehend, is, Is this an objection in the law of England, upon which your judgment can proceed ? I aver, it is no such thing ; because the parish is a sufficient venue. Can the contrary be shewn here ? It could not be shewn by the English law. You might say, here are twenty or thirty hamlets, but that would not answer. The learned Counsel knows, that this plea is to be put on parchment, and to be sworn to. In what way could he shew there was any particular vill ? Would he state there was a barony ? Would that do ? The law, with regard to vills, has no analogy to the Scotch law as to baron-baillies or ba- ronies. In England, every indictment for High Treason which has been tried, down to the moment I address you, has been laid in this way. And when I consider the learning and the ta- lent which have been employed on those several occasions, when every thing was done that both learning and talent could do for the persons under trial, I am bound to suppose, in candour to the gentlemen engaged, that this objection did not escape them, but that they thought there was nothing in it, and passed it over. I may here notice the case of Thistlewood, in 1817, where the venue was laid in the parish of Marte-la-bonne, and not in any particular vill. If we are to talk of vills, there are scores of them there. This very objection was taken, but the Judge said, he never heard of it before. I have also to speak to the practice of another Judge Mr Justice Holroyd. He overruled the plea ; and that plea did state, that in the parish there were various townships with constables. 77 Lord Chief Baron. Was the matter of abatement on re- cord ? Mr Serjeant Hullock. -The objection was quashed, and the Judge would not receive it. I submit, therefore, there is no law that requires that to be done now. The law of England cannot be better collect- ed than by practice and usage. To mention the practice on this point is enough. And that is the fact which I have sta- ted as to the practice. The Court of King's Bench has decided in civil actions, where there is as much strictness as in criminal cases, that mention of the county is sufficient. It is very much the fa- shion of young pleaders, in civil actions, to state the matter as having happened " in the county aforesaid, 1 ' without even laying the parish. And the reason given, is, that inasmuch as now the juries must come from the body of the county, the reason for a different practice, such as it was, has ceased to exist ; and it is idle, and not wise, to found on what is not supported by reason. No case has been stated on the other side, in which this objection has ever been allowed to prevail. Therefore, and as the reason has ceased to exist which was the basis of the law, the superstructure ought to fall. The present indictment is consistent with the practice ob- served in all similar cases. It is the uniform course of prac- tice and experience in England upon which this indictment is bottomed. Without adverting, therefore, to what may be the law of Scotland, I hope it will be apparent that this ob- jection must be overruled. Mr Cullen. I do not rise to reply to the learned disqui- sition which we have just had from Mr Serjeant Hullock, for, by this time, your Lordships' minds must have been made up on the import of the present discussion. I may, however, make one observation upon an illustra- tion of the practice which was dwelt upon by Mr Hullock, and in which, with much deference, he appears to have mistaken the import of the law as laid down by Hawkins. The learned Serjeant instanced the case of Thistlewood, in 1817, and observed, that there the venue was laid in the 78 parish of Marie-la-Bonne, and not in the vill of that parish, though it might be proved to consist of several vills. Now, here, Hawkins lays down expressly, that such is quite cor- rect in point of law, and I did not argue for the opposite. In the passage I quoted before from Hawkins, Book II. c. 83, 92, he expressly lays down, that if the place be laid in a city, the parish in that city must be specified, and no more. It is only when laid in a country -parish, in which are various vills or small towns, that the vill must be speci- fically laid. I will only add, that the writers whom I quoted towards the close of my former observations, are the most recent authorities that have published on the present practice be- fore the Courts of England. If they declare expressly that the practice now, is in conformity with the law laid down, on the subject of the present argument by Lord Hale and by Hawkins, and if your Lordships shall consider this erro- neous in point of practice, then I have undoubtedly been deceived, as the learned Serjeant remarked. And it is to be regretted, that an error of this nature should have crept in- to authorities of such recent date. Of the late practice in England upon this matter, it cannot be supposed that I should be informed, but from the books which profess to publish this to the country. Lord Chief Baron. Do you withdraw the objection ? If you were to plead in abatement, you must plead that the pa- rish has different vills in it ; then that what you call a vill is constituted according to what the law of England would find to be a vill. But I very much doubt, whether in Scot- land you could find any district so situated as a vill in Eng- and, at the time that the law was supposed to exist. And, if you made out the fact, my notion is, that, at the present day, it would not be a good plea in abatement. Mr Chitty I do not undervalue, He has published much useful practical information. But his materials were collect- ed during the course of his long legal life ; and he puts down a good deal collected from ancient authorsj and leaves it as the law of the present day. Hale says, that when the objection is stated, it must be 79 as a plea in abatement ; but that does not say it would be a good plea. But you have done your duty in stating whatever objec- tion occurred to you, either in point of form or substance. (The objection was withdrawn.) Mr Knapp, (clerk of arraigns.) Thomas M'Culloch, are you guilty or not guilty ? Thomas M'Culloch. Not Guilty. Mr Knapp. How will you be tried ? Th&mas M'Culloch. By God and my country. Mr Knapp. God send you a good deliverance. Mr Knapp went over all the other prisoners (except the defendants in the Camelon Case) in the same way. The Lord President. Thomas M'Culloch, and you other prisoners, I have to inform you that your trials will come on upon the 13th of this month, and you will be prepared accordingly. THE TRIAL OF Stirling, Thursday 13th July, 1820. PRESENT. The Right Honourable CHARLES HOPE, Lord President. The Right Honourable DAVID BOYLE, Lord Justice Clerk. The Right Honourable Sir SAMUEL SHEPHERD, Lord Chief Baron. The Right Honourable WILLIAM ADAM, Lord Chief Com- missioner. The Honourable ADAM GILLIES, Lord Gillies. Counsel Jbr the Crasm. The LORD ADVOCATE. The SOLICITOR GENERAL. Mr SERJEANT HCLLOCK. Mr DRUMMOXD. Mr MACOXOCHIE. Mr HOPE. Agent. JAMES ARXOTT, W. S. Counsel for the Prisoner. Mr JEFFREY. Mr CULLEX. Agents. Messrs BLACKIE and ALEX. ANDER, W. S. 81 i THE Court being opened, Andrew Hardie was set to the bar ; and Thomas M'Culloch, Benjamin Moir, Allan Mur-< chie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, J. S. Wright, William Clarkson, Thomas Pink, Robert Gray, James Clelland, Alexander Hart, John Baird, John Barr, William Smith, and Thomas M'Farlane, were placed behind him. Mr Jeffrey. My Lords, I am not quite certain, in the novel situation in which I now feel myself placed, whether, what I am going to state, is about to be stated in the proper time and place ; but, my Lords, being advised that there is an objection competent to the prisoners at the bar, against the wbole array returned for their trial, I am ready, with the permission of the Court, to state the grounds of this ob- jection ; and, it occurs to me, that if it is well founded, it will be a material saving of the time of the Court, that the grounds of it should be gone through now, even before the ceremony of calling the names of the persons, returned to attend as Jurors, is gone over. My Lords, I do not know whether I ought to intimate or insinuate to your Lordships, that there is a matter in which I conceive my unfortunate clients to have a material, though a different interest, which it does appear to me to be desirable to be disposed of, even anterior to this objection. m My Lord, I observe, in the array of the learned Counsel for the prose- cution Lord President. So do I too do you mean to object to that? Mr Jeffrey. Yes, my Lord ; not to the whole. One of my objections is a challenge to the whole array, though not of the counsel. But I think it desirable, before we enter into this judicial combat, that we should ascertain the real com- batants ; and, my Lord, it does appear to me to be material to the interests of the unfortunate persons at the bar, that we should ascertain, before entering into this perilous com- bat, whether one of the gentlemen is legally entitled to add VOL. i. F 82 the great weight of his authority and learning to the very formidable phalanx which we have at any rate to encounter. My Lords, I observe in the array of the Counsel for the prosecution, an individual known to me, and generally known by reputation, but unknown as a practitioner in any Scottish court. Now, my Lords, I am sure it is unnecessary for me to say, that in objecting to that person's being allowed to add the weight of his learning and authority to this prosecution, I am the farthest in the world from intending any discourtesy or disrespect to him as an individual; and, certainly, my Lords, if I were to consult only my own feelings and inclina- tions, nothing could be so gratifying and advantageous to me, as to have an opportunity of taking a lesson from the great talent, learning, and experience, that we all understand to belong to that individual ; but standing here as advocate for the prisoners at the bar, all personal considerations must give way to what I sincerely feel to be for their interest ; and your Lordships will require no other statement from me now, as to the motives by which I am led to trouble the Court with the few observations I shall submit. My Lords, it is too plain to require argument, that a per- son, of whatever rank or consideration in the profession to which I have the honour of belonging, but who is not qua- lified or received as a person entitled to practise in a Scotch Court, can in general have no right whatever to appear in any court of that description ; and, therefore, my Lords, I am confident, that the only ground upon which the services of this valuable practitioner will be claimed, will be either in respect to the nature of the Law by which we are to decide, or to argue in this case ; or perhaps more peculiarly with re- gard to the constitution of the Court, in which we are now assembled. My Lords, it is certainly true, as I but too intimately feel, that th,e law, according to which this trial is to be had, is a law that has been, for a course of time, though not very long, drawn from another country ; and that it did not ancient- ly form a part of that system of jurisprudence, with which alone persons in my situation are generally bound to be ac- quainted ; and up to this day it does, as to the forms of proce- dure, form an eminent and distinct exception from those forms, in the practice of which we pass our lives exclusively. But, my Lords, I need not state to your Lordships, that, though by virtue of a statute, certainly upon the whole most beneficial and salutary to this part of the empire, the law of Treason, and the forms of proceeding, have been assimilated to those of England, it is not the less true, that the only effect pro- duced by this change is, that the law of treason, as so altered by statutory authority, has become part of the law of Scot- land ; and no other effect has been produced upon our sys- tem by the statute of Queen Anne, containing, as it does, a general enactment, that in time to come, all that is treason in England shall be treason in Scotland, and that the courts trying it shall try it in the manner in which it had been tried in England, than if it had engrossed the whole provisions of the law of England, and an abstract or detail of the whole practice. In short, all that is done is, by a general reference, rather than a particular enumeration, to make the law of Scotland with regard to the definition and trial of one offence identical, at most points, if not altogether, with the law of another country, which was supposed to be better regulated at the time. This however plainly would not entitle persons, who have no locus standi in a Scotch Court, to appear there ; because your Lordships are aware the same thing might be said of every proceeding in every Scotch Court, of civil or criminal jurisdiction, where the matter was regulated by a British statute common to both parts of the empire : For, so far as such British statutes are connected with individual rights or offences, by terms embracing both ends of the island, the same identity of law exists, that has existed as to treasons since the statute of Queen Anne. Therefore, there is no suit in a civil court in Scotland, which depends on a British act, since the Union, which is common to both countries, in which English counsel might not claim the right of appearing ; and, therefore, without going into further illustration of that point. 84 I take for granted your Lordships must hold, that if all that had been done by the statute of Anne, was to declare that what was treason in England should be so in Scotland, and that the Courts should proceed to inquire into it according to the forms used in England, it would be such an addition only to the law of Scotland, as applies to all other statutes refer- ring to both countries ; and, therefore, the identity of the Law in the two ends of the island, though proceeding from statutory authority, could afford no ground for saying that any but a Scotch lawyer could appear in a Scotch Court ; and, therefore, the question is, whether the high tribunal I now address, is rightly to be considered as a Scotch Court or not. My Lords, the statute of Queen Anne undoubtedly con- tains, besides the general and substantive enactment to which I have alluded, that provision, by virtue, and under the au- thority of which, your Lordships now sit here. It does provide also, " that the Queen's Majesty, her heirs and suc- cessors, may issue out commissions of Oyer and Terminer in Scotland, under the seal of Great Britain, to such persons as her Majesty, her heirs and successors, shall think fit ; and that three of the Lords Justiciary be in the said commission of Oyer and Terminer, whereof one to be of the quorum, to inquire of, hear, and determine such high treason, and mis- prision of high treason, in such manner as is used in Eng- land." Now, my Lords, I understand that, under this en- actment, it has been held, and is to be contended, that such commission of Oyer and Terminer as we are now met to at- tend, is not to be considered as a Scotch tribunal at all, but rather, as it were, a court of a common and general nature, and participating, though in an inferior degree, of the charac- ter of a commune forum of the whole empire, that unques- tionably belongs to the High Court of Parliament, to the King in Council, and to the House of Lords, in its judicial capacity. Now, with great submission, it appears to me, there is not the least ground for this parallel, or for ascribing to the pre- sent tribunal any one of those characteristics, in virtue of 85 which these tribunals are to be considered aforum commune of the whole empire. If I have the least notion of what constitutes a forum commune, it is this, that that tribunal or court has power and jurisdiction over the whole of the territory, in re- lation to which it is forum commune : and this holds un- doubtedly, emphatically, and indisputably, as to those tribu- nals to which I have just referred. The Parliament of Bri- tain is the Parliament of Scotland. His Majesty, by his councillors, decides for both, and the High Court of Parlia- ment sits for both parts of the united kingdom ; and, there- fore, all matters that are subject to the authority of those bo- dies, or that by any form of law can be brought within their cognizance, are matters in which, of course, the subjects of every part of the empire have a common and indistinguishable interest, and in which they have consequently a right to have their cases stated by any person qualified to practise in any of the courts in that territory, which is the territory of the forum commune. Now I ask your Lordships, is this commission of Oyer and Terminer, or is any commission that could issue under this statute, a. forum commune ? In this case, is there any part of the united kingdom but Scotland subject to the authority of this Court ? Is there any delinquency committed any where but in the kingdom of Scotland, to which this tri- bunal can extend its consideration ? Has it the least autho- rity, or the least influence, the least right to interfere, sitting under the authority of this statute and commission, to take cognizance of any offence committed any where else ? I do not merely say the Court sits in Scotland, because, by the law, it must sit in the county where the treason is charged to have been committed; but I say this Court cannot sit any where but in Scotland ; and not this commission only, which is di- rected only to try treasons in particular places, but I say no commission of this description, or issuing under this statute, can sit any where else but in Scotland ; because, my Lords, the commissions, granted for trying treasons in England, are not granted under the 7th Queen Anne ; and all the com- missions, to try treasons in Scotland, must sit by virtue of that statute, and that statute only. 86 But, my Lords, with submission, there is more in this case. My Lords, the law of Scotland undoubtedly is assimilated to the law of England by the statute in question, but, with sub- mission, it is not entirely identified with it. There are dis- tinctions and qualities, under which this branch of the law of England is extended to Scotland ; or rather, under which this new law is engrafted into the system of Scottish jurispru- dence. Your Lordships are aware, that in the matter of the qualification of jurors, as to which we were about to proceed, and in the matter of entails, as it affects a forfeiture on con- viction, there is a distinction ; and, my Lords, besides all that, there is another distinction of a character and descrip- tion, that appears to me to be peculiarly important in the present question, and of itself I should humbly state deci- sive of that question, and that is, my Lords, that the proceed- ings, under such commissions, and under such commissions only, as issue by virtue of the Act of Queen Anne, are liable to be carried and removed into one of the established radical criminal courts of Scotland, and only into such court : For it is expressly enacted, that by Writ of Certiorari, the pro- ceedings, by such commission, may be removed and trans- ferred into the High Court of Justiciary. Now, my Lords, see a little farther. I have spoken of the trial of treason, under such a commission as has here been issued ; but, my Lords, that is not the only tribunal be- fore which the offences created may, by this Act, be tried and inquired into according to the forms required by this Act. The original jurisdiction of the Court of Justiciary, and of the Circuit Courts of Justiciary, is preserved, not only be- cause it is not abolished, but because it is distinctly recog- nised by the enacting clauses of that statute. Now, my Lords, consider for a moment how anomalous, how void of reason, the provisions of a law would be, which established or recognised two courts of concurrent jurisdiction for the trial of the same offence, by the same forms, and under the same new state of the law, in one of which persons of a dif- ferent order and description should be entitled to assume and take the management of the causes from those .who 87 alone could practise in the other. I conceive, on the argu- ment I formerly hinted at, rather than urged, before your Lordships, that if there had been no power to grant a com- mission under the statute of Queen Anne, but a mere new law of treason for Scotland, and directing the form and pro- cess for trying it, it could only have been tried in the original criminal courts of this kingdom ; and if there had been no such commission, the proceedings must have been in the High Court of Justiciary, and conducted exclusively by those entitled to appear there, without any foreign assist- ance, as in any other crime. Now, my Lords, we have this very case in the statute of Queen Anne, by which, while it changes the law of Scot- land, and creates a new branch of the Scotch criminal law, a form of proceeding is provided, by which every thing pro- posed to be done, may be done completely, and carried into effect by this statute, by a mode of trial, in which I conceive it to ba plain, that no person, not entitled before to appear in a Scotch court, could have a persona standi. Can it be held, then, that by a choice of one of two courts of concur- rent jurisdiction, or rather, in favour of the one of inferior jurisdiction, such persons should acquire a title to appear ? The Court of Justiciary is clearly recognised as the high and the ultimate court, into which, in matters of difficulty or inconvenience, proceedings before the commission may be removed ; but there is no provision for removing a trial, be- gun in the Court of Justiciary, under the statute of Queen Anne, into any commission, as being of a more proper nature. Now, I will not inquire whether a person, entitled to ap- pear before the commission, would be dropped, when the proceeding was removed into a court, as to which he could not have been allowed, otherwise than as an individual, to pass the threshold. This is a strange thing, admitting of no parallel in any other branch of our law or practice, and af- fording a strong presumption against that being intended, which must be assumed on the other side, if my objection is not well founded. But, my Lords, I lay comparatively 88 little stress on these considerations, I recur to the genera! proposition. Upon what principle, upon what pretence of principle, can it be maintained that this is a British court ? It cannot sit to try any general crimes committed in Great Britain ? My Lords, I know a case may be supposed, and I will not dispute untried cases, but I will allow that one commission of Oyer and Terminer might be granted for the trial of treasons committed in England and Scotland, and might be sent to try treasons on the march lands, on the borders of the two kingdoms, and might sit one day in North- umberland, and the next day in Berwickshire. But though that might happen, I humbly conceive it to be quite clear, it would not sit under the same authority in both these places; for it would sit in England under the authority of those statutes, (which I do not pretend to know) under the authority of which, antecedent to Queen Anne, commissions had been granted ; whereas, in Scotland, it could only sit under the statute of Queen Anne, which is a separate source of autho- rity, a statute relating to Scotland alone, and therefore re- gulating proceedings in Scotland alone, and impossible to be referred to as the source and fountain of any British court. In so far as it is a commission for Scotland, it must be un- der the statute of Queen Anne ; which is a Scotch statute, capable of regulating things in Scotland oply ; and therefore is a commission which can have no greater latitude of autho- rity, than is derived from a statute circumscribed by locality. My Lords, the commune forum , in the case I have supposed, would be a constitution by statute of a new forum to try treasons committed in Great Britain ; and wheresoever the seat of such a tribunal might be, or even if it were made ambulatory, that court, from its constitution arid description, would answer the description of a commune forum. If it had been enacted, for example, that in all time hereafter, the law being the same, all trials for treasons may, or shall proceed before a Court of Oyer and Terminer, to take cognizance of all treasons in Great Britain, and that it shall sit at London, York, or Edinburgh, that would be a commune Jorum, be- 89 cause it would have authority over all parts of the island, and take cognizance of all parts of the island. That would be a statute touching both ends of the island ; but the statute to which alone we can now look as the foundation and germ of every thing, is a statute of a local nature, innovating the law of Scotland, but touching in nothing the law of England, and doing nothing whatsoever with regard to English courts or English delinquents. Then, how can this be a British court ? In what respect can it be said, that any thing done under the statute of Queen Anne, under which alone, it is admitted, this commission can be granted, can constitute a British court ? Certainly not from the circumstance of the proceedings being assimilated to the law of England, as to the form of trial, and certainly not because it does issue, by a statutory and precise authority, under the Great Seal of Great Britain, and not the Seal directed by the Articles of Union to be used for the Great Seal of Scotland. It is necessary here to look back to the Treaty of Union, which regulates the Seal, but before reading the clause to your Lordships, I shall say in one word, that it appears to me quite manifest, that this commission has not issued in terms, or under the authority of that article in the Treaty of Union. That Treaty regulated the use of two Seals. The Union Seal, in this country, was the seal to be used instead of the old Scotch Great Seal, with regard to proceedings formerly known to the laws of either country. But the commission, now issued, does not fall under that description ; and neither does it fall under the description of writs to which the Great Seal of Great Britain shall be applied ; and the sum of my argument is, that the case of such a commission, not being regulated and provided for by any thing in the Treaty of Union, was regulated and settledj^br the first time, and as an unprovided case, by the statute of Queen Anne first autho- rizing such commissions. My Lords, the 24th article of the Treaty, as your Lord- ships know, declares, that " from and after the Union, there shall be one Great Seal for the United Kingdom of Great 90 Britain, which shall be different from the Great Seal now used in either kingdom." And here is the enacting clause for this new Great Seal. " And that the Great Seal of England he used as the Great Seal of the United Kingdom, and that the Great Seal of the United Kingdom be used for sealing Writs to elect and summon the Parliament of Great Britain, and for sealing all Treaties with foreign princes and states, and all public Acts, instruments, and orders of State, which concern the whole united kingdom.'" 1 Now, with great submission to your Lordships, this enumeration is exclusive of the present writ or commission. My Lords, it is quite plain from the enumeration, that these writs, which are to have the Union Seal, are those public instruments, in which the majesty of the whole state is embodied, with reference to foreign or extrinsic matters, or matters relating to the whole country, the summoning of Parliament, or any acts that are to operate in both ends of the kingdom, or beyond it. Then follows the provision with regard to the new Seal of Scot- land. " And that a Seal in Scotland, after the Union, be al- ways kept and made use of in all things relating to private rights or grants, which have hitherto passed the Great Seal of Scotland, and which only concern offices, grants, commis- sions, and private rights, within that kingdom." My Lords, these are the only operative parts of the clause ; and the meaning plainly is, that this new Seal shall be used in all things in which the Great Seal of Scotland had formerly been used. Now, my Lords, it may no doubt be asked, if this is to be considered as a Scotch court, why is not the commis- sion to your Lordships sealed with that Seal ? And I answer, because no commission of Oyer and Terminer, no such tem- porary, tribunal, was at that time known to the law of Scot- land. See then how awkward it would have been to have left this matter to be regulated by the Treaty of Union. Such a com- mission had never before been seen in Scotland. It could not therefore be offered to the new Scottish Seal for " writs which had hitherto passed the Great Seal of Scotland." 91 Neitlier could it, under the Treaty, be offered to the Great Seal of Great Britain ; for it was not an order of State, it was not a public act or instrument, like a treaty with a foreign prince it was not a matter commanding something to be done over the whole kingdom it was touching and concern- ing Scotland only, and by virtue of a statute, which touches Scotland only ; and, therefore, I conceive it was necessary, when this innovation was made in the law of this country, that some special enactment should be made, in order to avoid that very construction which this enactment is said to confirm, and which, I think, it excludes ; for if the case had been, that the Act of Queen Anne had declared it should be competent for the Queen to grant commissions to Scotland, without say- ing any thing about the Seal, it would be difficult to say, that whatever choice was made, objections might not have been started. And it was to avoid these objections, as I conceive, that the special provision was enacted. If I am right in the premises of this argument, I think I can scarcely be wrong in the conclusion ; and I really do not see on what ground these premises can be questioned. Surely it will not be contended that such a commission as this falls under the first clause, which declared the Great Seal of the United Kingdom should be appended to writs for summoning the Parliament of Great Britain, and for sealing all treaties with foreign princes and states, and all public acts, instruments, and orders of state, which concern the whole united kingdom. In one sense, in- deed, (a popular and metaphorical sense) every thing done in the most insignificant quarter, in a Baron or Baillie Court, concerns the whole kingdom, as a matter of example ; but that is not the statutory sense. My Lords, does this concern the whole united kingdom ? Certainly not ; and therefore by what pretence could this be offered to the Great Seal of Great Britain to be sealed? As to the Scottish Seal again, this plain- ly was not a commission which " had formerly been in use to pass the Great Seal of Scotland," nor at all parallel to any such commission. All therefore that we can say is, that, in this new matter, the Parliament, in the plenitude of its 92 power and wisdom, has declared it was most convenient, and most conducive to the authority of the Judges, that their com- missions should issue under the Great Seal of Great Britain. But that is done under the authority of the statute alone; and does not therefore infer any recognition of its concern- ing the whole kingdom. It does not proceed on any pre- sumed interpretation of the Articles of Union, but on a re- gulation introduced pro re nata. Parliament declares, that such commissions granted for Scotland, shall be good under the Great Seal of Great Britain ; and it might have made them good, if they were signed by any petty officer in Ork- ney or Caithness. It is unnecessary, therefore, and incom- petent, to go further back than to that act, to explain why the Great Seal of Great Britain is appended to those com- missions : And thus we begin and end with the special sta- tute, which declares, that a commission to try treasons under that act, altering the law of Scotland only, shall be sealed with that seal, and it is so sealed. But does this special and necessary enactment at all touch and settle the question as to the nature of the tribunal ? This is a tribunal for trial of Scotch crimes. It is a tribunal sitting under a statutory authority in the realm of Scotland ; and it is a tribunal to administer the Scottish law only. That it re- sembles the law of England is no argument at all : with re- gard to Scotchmen it is nothing but the Scotch law ; it is as much the Scotch law, as all British statutes extending to Scotland are Scotch law : The law merchant insurance and contracts is the same. But it is enough for us that it is the law of Scotland ; and what more can you say of our new law of Treason, than that it is now the law of Scotland ? We have nothing, in short, to do with the law of England here : that our law is assimilated to it is nothing at all ; and I ask your Lordships, how it can at all affect the true nature of the Court, that, by a statute, which no person can controul, or question, the commission was directed to pass the Great Seal of Great Britain ? It is not the worse for that ; and if it had been declared, that it should pass under the signature of the 93 lowest macer in Scotland, or of any other individual, it would be equally good ; and, therefore, the true nature of the com- mission would remain to be inquired into, altogether unaf- fected by the description of seal which had been declared fit to be appended to it. My Lords, I must again remind your Lordships, that we are here to deal with Scotch law in a Scottish court, just as clearly as in any other case that could be suggested. We have no right to claim any part of our law as entirely indi- genous. We have borrowed from Rome, and from ancient and modern England, some things from France, and some from Holland. Our law is a tissue of shreds and patches ; but can it be said it is not the law of Scotland, though even at the most ancient periods of our jurisprudence, some points have been borrowed from the neighbouring kingdoms ? Surely, after a hundred years, it would be the law of Scot- land, and nothing else. In the same way, I say that our law of treason, though assimilated to the law of England, is not identified with it ; for there are distinctions, and your Lordships cannot proceed in every respect in the way they do in England. The nomination of jurors, and their qua- lifications, and the consequences of forfeiture, are different ; and we should be embarrassed, in a new way, by a certio- rari, which would puzzle some of the gentlemen now in my eye, to reconcile with their present pretensions. In all these respects the law differs, and the courts differ ; and, therefore, my Lords, that with which we have now to do, is nothing but the law of Scotland, modified by the wisdom of the legislature, which is every day varying it : And, there- fore, upon these grounds, in the statement of which I have occupied too much time, I submit I ought not, in addition to the many grievous disadvantages under which I feel I am to undertake the laborious business of this day, to be opposed with such terrific odds, with the addition of such an auxili- ary as is here brought against me ; I, therefore, humbly submit to your Lordships, that I should only be opposed by those persons by whom I am accustomed to be opposed, and 94 with whom I am accustomed, with considerable apprehen- sion, to try my strength. Before I sit down, perhaps I ought to say one word more. I am told that this question is ruled by precedents. I am not aware of any precedent. I have heard, indeed, by common report, that some of the unfortunate persons who, under a special statute, were tried in England in 1746, for treasons committed in Scotland, were allowed the benefit of Scotch counsel to conduct their defence ; but I know of no autho- rity for the fact, nor how it may be. Lord Chief Baron Shepherd. In the year 1746, those accused of treason in Scotland were tried in England ; and I think the statute, directing they should be tried in Eng- land, empowered the King to issue the commission to any county or shire of Great Britain. Now, suppose it had been a trial under a commission of Oyer and Terminer, in the north of the Tweed, could not any of his Majesty's English counsel have attended it ? Mr Jeffrey. I am aware of your Lordship's difficulty ; but I do not think the solution of that question, which I am far from considering myself competent to give, would affect that which now waits your decision. We have to deal here with the statute of Anne. The precedent of 1 746 approached to the case of a court of statutory constitution, a court of general and co-ordinate jurisdiction ; and then, if the act gave authority to grant commissions over both parts of the kingdom, that might be said to be a commune forum ; and if the fact were, as your Lordship suggests, that that was a statute applicable to the whole of Great Britain, a commission under that would of course be a commission applicable to Great Britain. But I trust I relieve myself altogether from the peculiarities of that case, and the difficulties under it, by stating that that statute being expired, and we being now reduced to the statute of Queen Anne, the question cannot arise here ; and that dis- poses of the precedents of the greatest authority, both from the importance of the trials, and the length of time they have stood on the record. If, under some of those acts, the prison- 95 ers had the benefit of Scotch counsel for their assistance in England, I would say it was under an act of Parliament per- mitting the commission to sit within Great Britain, thus con- stituting a commune forum, and so letting in all the prisoners to take such assistance as they could most easily obtain, or chose to rely on ; and there every counsel entitled to practice in the Supreme Courts would be entitled to appear. Nay, even, if in point of fact, in a parallel case to the present, such an in- dulgence was allowed to the prisoners, to whom every reason- able indulgence is allowed, that would afford no ground for allowing it against a prisoner. I understand also, that in, I believe, the only parallel instance, in the trials under the commission in 1794, certain persons, eminent in the law of England, did assist the crown counsel in those proceedings ; but I have understood that the leading counsel, Mr An- struther, had been admitted to the Faculty of Advocates, and, I believe, Mr Dundas, who assisted in a subordinate part Lord President. No matter how subordinate. Mr Jeffrey. I do not know having allowed so great a man as Mr Anstruther to appear, they might allow his Es- quire to pass under his shadow ; but the material thing is, that in that case nothing was determined on argu- ment or consideration of the question. The practice was admitted by the parties without opposition, without any dictum, without any sort of evidence appearing any where, that the point was under the consideration of the Court; without any intimation to the public that a decision had been formed ; and, therefore, I submit there can be no precedent for a thing of this kind, where there is neither a rule of court nor practice, and when there was no interest to resist the appearance of a person like Mr Dundas, who was almost by birth entitled to claim a connection witn the law of Scotland. I certainly do not use that as an argument ; but I think it might be ungenerous to object to a person who was taking a subordinate part ; and a single precedent would not be held, in a matter otherwise clear, to rule the law, or form any in- gredient in the decision of the Court, to whose decision, for the first time, the question is now submitted upon argument. 96 Lord President. -It is impossible that this Court, if it had conceived itself to be exclusively a Scots Court, could, with- out any argument of Mr Jeffrey's, or on the part of any other person, have seen Mr Sergeant Hullock make his ap- pearance here, without being struck by that appearance. It is such a strange anomaly, that an English barrister should claim a right to appear here in Scotland, that in the case of an ordinary crime, in the Court of Justiciary, let his claims from birth be ever so great, or his part be ever so .subordi- nate, or the claim of compassion ever so strong, the first thing that would strike the Judges would be the appearance of such a person ; and, therefore, it was not without due con- sideration that Mr Sergeant Hullock was received here at all ; nor was it without consideration in 1794, that English barristers were suffered to appear in Edinburgh. The ob- jection was not stated, nor was the question debated in open court ; but it was well considered both here in this country, and by his Majesty's government above ; and, I presume, it was well understood on the part of the counsel for the pri- soner in that case, that it was in vain for them to contest the point. But, in law, the Court has no difficulty upon the point, and I shall shortly state the grounds upon which the point turns. Your Lordships know that the Treaty of Union, if it had been concluded in general terms, would have made the two countries one and one out and out, leaving a very puzzling question behind, what was to become of the pecu- liar laws of both ? It was intended to be a treaty of incorpo- rating Union, out and out, except so far as the special articles provided for the regulation of different matters in the diffe- rent ends of the kingdom. Accordingly, it was most anxi- ously provided, on the part of Scotland, with great jealousy, that its private laws should be preserved entire regarding its civil rights ; but it was provided at the same time that the laws regarding the public right, policy, and civil government, might be made the same for both parts of the united kingdom. The only thing that kept their laws separate, was the article 14- that made them separate ; but, in all other points, it was an incorporating Union. It was provided by that article that the laws regarding the public right, policy, and civil govern- ment, might be made the same, leaving it to the Parliament of Great Britain to consider to what extent they should be made so ; but that Parliament had to do every thing left un- done, to make the Union entire and complete. Accordingly, in the matter of treason, the law was de- clared to be the same in both ends of the united kingdom essentially the sameI may say entirely the same ; because, where they were separate, it was still by special articles in the new statute of Anne ; but the fundamental article of that statute of Anne is, that the law of treason shall be the same in both ends of the kingdom ; and, from that moment, the law of treason became neither the law of England nor the law of Scotland, but the law of Great Britain, common to both, affecting the subjects of both ; for it is not treason in Scotland that affects the subjects of Scotland alone, it affects the Empire altogether; and it is enacted that the crime shall be the same in both ends of the kingdom ; it is enacted that the prosecution shall be the same ; it is enacted that the trial shall be the same ; it is now, therefore, the law of the united kingdom of Great Britain. Therefore, in so far as the law is the same, I take it the distinction between Scots and English barristers, with regard to that, is done away, just as it is with regard to the law, cognizant by the Privy Council, or the House of Lords. With regard to the act of Queen Anne, establishing the mode of trial, there it was in the power of the legislature to say what sort of Court shall be peculiar to one or the other end of the island ; but still to take cognizance of the law of Treason, to take cognizance of the whole of it. In establish- ing such Court, the legislature might have authorised any kind of Commission ; or it might have established a judica- ture common to both ends of the island. It did not establish a permanent judicature common to both, but it authorised the King to issue a Commission of Oyer and Terminer. VOL. i. G 98 Now, what could have induced the Parliament of Great Britain, at that moment, to select the Great Seal of Great Britain, as the authority under which the Commission was to issue, in preference to the Great Seal of England or Scotland, except its conviction that it was issuing a British Commission ? If it had been to be a Scots Court, surely the natural, I may say the legal, and the proper authentication of this Commis- sion, would have been the Great Seal of Scotland ; and it was as easy to put that into the act, as the Great Seal of Great Britain. If it had been to be a Scots Court, peculiar to Scot- land, the proper instrument was the Great Seal of Scotland ; but it took, in fact, the Great Seal of Great Britain : Why ? For no reason, but because it was conscious, and knew it was creating a British Court ; for Englishmen may commit trea- son in Scotland, just as well as Scotchmen ; and, therefore, it selected very properly. I do not say it might not have been omitted, and that it would not have followed that the Great Seal of Great Britain might have been used ; but that would have raised an argument why there is nothing said with regard to this being a Scots Court ; and, therefore, to remove all doubt, it was thought proper to specify the Seal under which it should be issued. But why did the Parliament take the Seal of Great Bri- tain, when they might have taken the Great Seal of Scotland, unless that they knew it was to be a Commission of Great Britain, and not of Scotland ? Therefore, the parallel, in my apprehension, is direct between this Court and the House of Lords. This Court administers neither English nor Scotch law, but the law of Great Britain ; and the only peculiarity is that, by the law of treason, the treason must be tried with- in the county in which it is committed ; and, accordingly, what has been the consequence of that principle ? It is per- fectly well known that the House of Lords, in trying a Scots appeal, judges of the law of Scotland, and by the Scots law alone ; and the learned Lord now sitting on the woolsack in that house, would be guilty of injustice, if he were to judge by analogy to the law of England ; and, in consequence, Scots counsel practice there daily. Scots coun- 99 sel can practice in English appeals. In the great case of lite- rary property, Mr Dalrymple, a Scots advocate, afterwards Baron Sir John Dalrymple, practised in the Writ of Cer- tiorari to the House of Lords. His right to appear was well considered, but it was found to be irresistible. Why ? Be- cause it was a British Court, though administering English law ; and, in that case, Mr Dalrymple pleaded the cause for Mr Donaldson the bookseller. And, in the case of Mr Kin- loch, Charles Hamilton Gordon, Esq. appeared at the bar of the House of Lords, and he was a Scots advocate alone ; and, therefore, these proceedings are ten times stronger than this ; because, in the case of Mr Donaldson, it was a plausible argument to be sure to say we are a British Court, but we are administering English law alone, and, therefore, English counsel only ought to appear before us ; but it was found Scots advocates were entitled to plead there ; and we have not the smallest doubt here, that in a Commission of Oyer and Terminer which has issued, and is about to sit at York, if Mr Jeffrey pleases to go there he will be received, and he must be received. But what is decisive on this point is, that in 1746, on the trials of the rebels at York and Carlisle, Mr Alexander Lockhart, and several other Scots advocates, ap- peared, and pleaded as counsel for the Scots prisoners, and no one ever thought of stating an objection ; therefore, upon the whole, the Court dismiss this objection, and find that Mr Sergeant Hullock is entitled to appear. Before you go farther, I must say, that I think, so far as your clients are concerned, they need not give themselves much uneasiness ; because, if they are to judge of your as- sistance by the abilities which have now been displayed, and by your brethren on a former occasion, they may depend up- on it their defence will be as well conducted as if they had Mr Sergeant Hullock for their counsel, Mr Jeffrey. My Lord, I hope I shall not forfeit any part of the credit my younger brethren have obtained, by what I am now going to say. I mean to suomit to the Court a challenge to the whole array, or to the whole panel of the Jury, in respect of its being struck. 100 Lord President. We must call the names first, to see that a certain number appear. Mr Jeffrey. I understand so, my Lord. [Twelve Jurymen being called, answered to their names.] Mr Jeffrey. My Lords, I may mention, in the outset, what I dare say your Lordships will anticipate, from the description I have given of the objection, as being one to the whole array, that it is founded in the alleged incompetence of the Sheriff who returned the Jury ; and, my Lords, I may here mention, that I take it to be clear, that under the words, however general they are, of the statute of Queen Anne, a prisoner arraigned for high treason in Scotland, is entitled to the whole privileges, and to the whole objections and chal- lenges that would be competent to a prisoner, charged with the same offence, before any court in England, unless the statute itself has introduced some limitation or exception ; and, my Lords, I believe I may also take it for granted, that, in a matter of this description, every formal and actual ob- jection that can be made out, upon grounds of law, will be available to the party placed in the favourable, because un- fortunate situation of the individuals, for whom I now ap- pear ; and that it is not necessary, in order to substantiate objections of this nature, that the prisoners should shew, though I think they can here shew, that they have a substan- tive interest in having them sustained. In short, my Lords, I take it to be clear that in this, even more than in all the branches of criminal law, it is clear that Form is Justice ; and that it is enough for me to shew that an irregularity has occurred, which renders the proceeding disconformable to that which the law has enjoined, although it may be said that the proceedings that have been had leave the prisoner all the benefit that the form would have given him ; and I think it is right that we should have this additional strictness of the law we have just borrowed, considering the many dis- advantages to which that transference of the law exposes us ; for while I am not to deny that the substitution of the new Jaw of treason of England, for the old law of treason in Scot- 101 land, was a great and invaluable benefit ; and while I am ready to admit that some things are favourable to the pri- soner, as to the form of the trial, upon the whole I consider he would have been more Fortunate in being tried by the old form of his own country. My Lords, if that had been the case, we should not have been embarrassed, as I, with the little attention and general professional habits I profess, ac- knowledge I have been, with an indictment of the bulk and contexture of this, we should not have been embarrassed with intimations of writings, real or pretended, neither cited nor exhibited to us, we should not have been distressed by having the last word taken from us by the counsel for the pro- secutors, and by many other things of which we grievously feel the weight. In return for that, my Lords, we have the benefit, if it is a benefit, of a more precise and formal system of observances, that are imposed upon the prosecutors ; and the benefit of all objections arising from any inaccuracies or deviations, which, from their complication, and their novelty in this country, may be more likely to occur. Now, my Lords, under the general terms, that all the pro- ceedings touching trials for treason in Scotland, shall be the same as in England, I understand this is carried back to every thing, from the first issuing of the commission, to the final deliverance after verdict, and embraces the whole form of proceedings with regard to the summoning the Jury ; and, accordingly, I understand, and I believe the record shews it, that the Sheriff does not furnish the list of Jurors, according to the rules, or upon the authorities on which he furnishes such lists to the Justiciary or the Jury Court, butin conformity to the rules of the British courts, by virtue ^ a writ of dis- tringas ; and, therefore, in the execution of that writ, and in the condition of the person who executes it, I am entitled to require all those qualifications and observances that are re- quired by that statute law in England, which, as to all these preliminary particulars, has been transferred in the mass to this country. Now, my Lords, in looking into the books of the law of England, I observe that that officer, who is entitled and required to strike the whole of the Juries, is an officer of 102 a description, and requiring to possess certain qualifications, which are not to be found in the person who has undertaken to perform the duty here. I need not trouble your Lordships with any statement as to the radical difference in the nomination of that offi- cer in Scotland and in England. It is known to your Lord- ships, that, by the ancient constitution of England, the Sheriff was a popular officer, chosen by popular election ; and, though he now receives his ultimate nomination from the Sovereign, he is suggested bv a number of eminent per- sons, judges and others, who report to the Sovereign a list of three persons, from among whom the Sovereign is bound, and has held himself obliged, to select a person to be Sheriff. The Sheriff, therefore, trusted with the nomination of the panel of Jurors, for trials in treason in England, is not the nominee of the Crown, which the Sheriff in Scotland is, and is only. In the next place, the Sheriff in England is an an- nual officer, and, by special statute, is disabled from holding his office, or from receiving a patent for holding his office, for more than a year ; whereas, the Sheriff in Scotland is an officer, and, in this county, we all know he is an officer who has received, and who has held his office, and, I hope, will continue to hold it, for a long term of years to come. In the next place, the Sheriff in England is, by precise statute, required to possess such lands and estate, in the county in which he has to perform his duty, as shall be sufficient to secure, not only the Sovereign, but the lieges who may have to complain of him, for any redress, which, in consequence of any neglect or impropriety of his conduct, he may be liable to at their hands. I believe I may add, in the fifth place, that the Sheriff, entitled to strike the panel in England, must find surety for the proper discharge of his business, to a cer- tain amount ; and, above all, I would state to your Lord- ships, that, by ancient usage, confirmed and modified by a re- cent, or, at least, not a very ancient enactment, an enactment of 3. Geo. I., cap. 15, he is expressly directed, before he is qualified to discharge any part of his office, to take a special oath, recited in the body of the statute ; and, among other 103 things, expressly bearing that he will return " reasonable and due issues of them that be within his bailiwick, according to their estate and circumstances, and make due panels of per- sons able and sufficient, and not suspected or procured, as is appointed by the statutes of this realm." Now, my Lords, I Relieve it will not be disputed, that, in one and all of these particulars, the officer, on whose return, and whose execution of the venire facias, the panel is pre- sented as regularly returned, is deficient, and plainly disqua- fied. And I humbly submit it to your Lordships to be a thing not bearing argument, that if such a panel were re- turned in England, by a Sheriff who had no lands, or estate, or property in the county, who had held his office for a period of a year before, who had been appointed by the Sovereign, without the intervention of any other persons, re- presenting in a manner the community, and who had dis- charged the duty without taking the oath required, it could not have been received as a panel returned by a qualified officer, and that he would have been disabled from acting, and would have been considered as a person merely usurp- ing power as a private individual. Now, my Lords, if that be the case, I submit there is no an- swer that can be made, unless a statute or a precise authority can be produced, by which I can be excluded 'from the benefit of the same pleas to the fullest extent ; Because, although the trial happens to be within the realm of Scotland, it is no an- swer at all, with submission, that this return is made by a She- riff, and that that Sheriff' is as near the English Sheriff as the institution of the office, by constitutional law, and practice in Scotland, will admit. My Lords, I stand upon the form ; I stand upon the words of the law ; and I say I am entitled to the benefit of every one precise statute, which affords a precise interest to the prisoner, and entitles him to say some- thing has been done irregularly ; for, if ita lex est scripta ; if the whole of these statutes to which I have referred, and which I am ready to read, are held, as I submit they must be held, to be observable, and observed, in Scotland, by the decla- rations of the statute of Queen Anne, then, my Lords, I hum- 104 bly submit it is no answer at all, if it were incapable of reply in other respects, to say you cannot get that county Sheriff in Scotland which the law contemplates in England, and, there- fore, you must take what you can get. That is no answer, and if it were, the reply to it is, that the legislature ought to have been more provident, and ought to have dispensed with those requisites of an officer who is not made by the statute, but who is, by the general purview of the act, necessarily understood to be qualified, as required by the law of Eng- land, which was borrowed without exception ; and, therefore, they oiight to have delared otherwise, which would have been a detrimental relaxation of the law to the prisoner ; or, it should have been provided, that the King should have power to appoint Sheriffs, pro re natd, with a view to such trials, and to qualifiy them with a view to the law of England. I am not sure that the King could not do so without a statute, or that any thing could prevent him from appointing a Sheriff, pro re natd, of the description, and requiring the oaths re- quisite in the part of the kingdom from which the whole law has been borrowed, for the benefit, on the one hand, and the prejudice, on the other, of the lieges of this country ; and, therefore, my Lords, if it should so happen, that, in conse- quence either of the omission of such a statutory provision, or of the neglect of such an exercise of such a power, we are now in a condition in which no panel can be returned in this country, that will not bar or weaken the pleas of the prisoners, upon the objection, that it is incompetent to them, as the law now stands. To proceed, my Lords, an officer, a Sheriff, might go by the same name, and have none of the qualities. The Sheriff in Scotland might have lost all the identities it possessed originally with Sheriffs in England, he might be a nominal officer during pleasure, a mere sinecure appointment of the court, he might be a person possessing none of the quali- ties in respect of which the power of striking the Jury was to be given ; therefore, you are to look not to the nominal essence of the officer, but to those qualities in respect of which this responsible act is entrusted to him. Surely it is 105 not enough to say he is a Sheriff, though he has none of the qualities of a Sheriff, in consequence of which qualities alone he is empowered to act. My Lords, I humbly conceive it is as impossible to main- tain that there are circumstances which may be held equiva- lent, or that some of the provisions may be indifferent to any substantive effect ; that though he has no lands in the coun- ty, he is sufficiently responsible from his property and cha- racter, and it is of no consequence where his lands lie. I am not to take that answer. Would it be taken in England ? If the law requires there that he shall have lands in the county, is it competent to say, if he has lands in the county beyond, that is enough ? I apprehend not. It may be said the Sheriff here takes an oath, which, though not the oath enjoined by the statute, is equivalent ; but in a matter of life and death, would it be maintained in England, that because the gentle- man was a man of honour, an oath was a superfluity, and it was a disgrace to bind him by an oath ? Would it be enough to say, that he had taken a general oath, de jideli^ when, on the face of the statute under which he was bound to act, he was required to take a precise oath, imposing upon him, and urging him to the performance of that duty, upon the per- formance of which he could not enter under any general equi-, valent precaution, or in any other way than by a precise com-, pliance with the terms of the statute ? Lord President. Your argument is founded on the sup- position, that this writ can only be issued to the Sheriff of a particular description. Are you aware there are a great many Sheriffs in England elected in a different manner? The Sheriffs of London and Middlesex are elected by the city of London. The Sheriff of Westmoreland is heredi-i tary. The High Sheriff of Durham, I believe, is named by the Bishop. If he is a Sheriff of a county, he is known to the law as the Sheriff. Mr Jeffrey. With regard to the nomination, the observa- tion of your Lordship has weight, and may, for any thing I know, be decisive ; but I am not aware that any of the per- sons are exempted from the other qualifications ; and I think the Sheriff, named by the Bishop of Durham, or the hercdi- 106 tary Sheriff of Westmoreland, are liable to the same objec- tion. I leave that to your Lordships ; but I submit, on the other points, that unless it is stated on authority, that in fact Sheriffs are entitled to act without taking that oath ; that in fact Sheriffs are entitled to act without the qualification of property ; that in fact Sheriffs are entitled to act who hold their offices for a term of years, and these objections apply, although there may be a difference in the mode of nomina- ting them, I humbly submit, if I were called into Court in England, to answer before a panel of Jurors returned by a person, against whom I could state these disqualifications ; and I put it to that learned Judge, who is most conversant with the law of England, whether that would be a good re- turn and if not, I submit it is impossible to hold from the mere circumstance of its being more difficult to obtain those qualifications with us, that I should be debarred of those ob- jections, which would occur to me elsewhere ; and, my Lords, I submit to your Lordships, that I should have the law, the whole law, and nothing but the law, in every article arid tittle of every provision of the statute of Queen Anne, by which the proceedings in high treason are regulated. I am entitled to object, in the same words and syllables, as a person in West- minster Hall, or any tribunal in England, would be entitled to object ; and, therefore, I humbly submit, upon the grounds I have stated, that this panel cannot be received, and your Lordships will be obliged to have recourse to those re- medies, to supply the deficiency of those qualifications, which, I submit, is incurable in the present proceeding. Mr Serjeant Hullock. My Lords, I shall trouble your Lordships with very few observations, in replying to the objection taken on the other side ; and if what I submit is not an answer, it is owing to my misapprehension of the way in which this objection has been put, because, in the course of my I am sorry to say, not short experience, it has been reserved to me to hear, on some occasions, since I had the honour of coming into this country, objections of various sorts in point of law, which have been urged with great ta- lent and learning, but none of them entitled to so little weight or answer as that just stated. 107 My Lords, I understand the objection to be this, that no Sheriff-depute if I err in the names, I trust the Court will excuse me that no Sheriff-depute, within any county within the kingdom of Scotland, is authorized by law to return a legitimate panel of a Jury, because we are told he is named by the King ; with respect to the other objection, as to legal qualification, I will come to that by and by. Does the learned Counsel forget that which he must have known at some period of his life, that every Sheriff in England (except those alluded to) is appointed by the Crown ? There is no Sheriff in England that is not nominated by the Crown, and does not hold his office by some patent or writ, with the ex- ception of Durham, Westmoreland, and London and Middle- sex. Lord President. There are other objections ? Mr Serjeant Hullock. Yes, my Lord, but I say the practice of the English Courts does not furnish a single ob- jection to the array, on the ground of want of qualification of the Sheriff. Did any Court of Nisi Prius in England, or any Court of Oyer and Terminer, ever investigate whether the officer, to whom the precept was delivered and directed, and who had returned it, had a title to assume the right he had exercised in making the return to it ? I should like to have the authority, the case, and the occasion upon which such an inquiry was instituted. Will any gentleman say that the Court of Oyer and Terminer would say, why you, Mr Sheriff, have no lands in the county of York ? You are ap- pointed by the Crown you can have no right. The array must be a vicious array it is an array to which the man, standing upon his trial, must have a right to object, because you are elected like all other Sheriffs in the island ; and it is important, for the moment, to get rid of this array. I say that the Sheriff, for any thing I know, may subject himself to pains and penalties for assuming an office, to which he is not eligible, but there is no proceeding of that sort ; and I think, that after the writ is directed to a particular officer, we are to presume all these things are rightly done till the contrary is proved, and I am only to understand from the a$- 108 sertion of the gentleman now, that the Sheriff has no lands in the county : but it is immaterial. The question is, whether or not these returns, made without imputation of partiality or improper conduct in the individual, without fraud, whether these are to be quashed for the reason averred ? The learned counsel has referred to the statute on titles and qualifications of High Sheriffs in England. I do not know what the statutes, as to Sheriffs, may be at this time, neither will the learned counsel, I think, affirm, that those are in existence to which he referred, but I know that High Sheriffs, in England, have been Sheriffs for counties in which they had no lands ; and it is yet certainly for me to learn, when and how any objection to the panel, on that ground, can be urged against the Sheriff. The principle of an objec- tion to the array is, that it has been improperly put together ; that in consequence of some improper proceeding between the person making the return, and those instructing him, that panel has been improperly put together, which may produce injury and prejudice to the ends of justice ; but there is not an insinuation of that kind on the present occasion. I apprehend the inquiry is foreign to the present question, whether this country has gained or lost by the transfer of these laws to it, and it is immaterial whether this indictment is a long one or a short one. I trust my learned friend will find it is enough. It is not for us now to discuss that the question is, whether or not this is an objection, which if it be an objection, as I understand it, must constitute an ob- jection in every county in this part of the island. The Court know better than I do ; indeed I know nothing at all about the matter. The Court know whether it is not usual, or whether it does not often occur, that the Sheriffs- depute are appointed for shires in Scotland in which they have no property. If that be so, the question is, whether that be the law whether, in point of fact, the practice, which has prevailed for better than half a century, is now to be set aside on the ground of some alleged analogy to the law of England, which ought to prevail throughout the proceed- iags ? I aver this would not be an objection in England, be- cause I aver distinctly, and I challenge every lawyer to con- tradict me, that no man yet was ever so wild and fanciful as to submit or suggest an objection of this sort in England, because I say it is incompetent for the Court here to sit to investigate the title of the gentleman, who assumes to be the Sheriff-depute of this county. I say it is incompetent for the Court to investigate it he acts at his peril. If he be not the legitimate Sheriff-depute, he acts at his peril ; but it is no ground for the Court to interpose upon the present oc- casion. I submit, therefore, that the Court are to take these proceedings as they come before them, as the act of the le- gitimate authorised officers. It would have been well if the learned counsel would have pointed out to whom the Jury process could be directed. Can he suggest to us here to-day to whom, in the absence, or in the defect of this officer, he would have this process di- rected ? " Oh !" says he, " you are to find that out."" I am at an utter loss to conceive a person to whom it can be di- rected. In England there would be no difficulty, provided the Sheriff was incompetent to make a return. I do not wish to occupy more of the time of the Court. It appears to me that there is nothing in the objection. I may misunderstand it, though I have attended to it as much as I can. I submit, however, in the first place, that the objec- tion is so broad that it can amount to nothing, for it would be an objection in almost every case in the annals of this country. In the year 1794, the process was directed to the same officer. Probably, I may be answered, he was not subject to this ob- jection. The objection, in fact, ought to be verified by affi- davit ; but assuming that it is so, I submit to the Court, with considerable confidence, that there is no ground for this objection. By proving too much, it proves nothing ; and in England, it could not be stated, or would not be listened to for a second, that the Court can be called on to investigate the right or title of the officer who has assumed the cha- racter. Mr Jeffrey.- It we are to go on as we have begun, we shall waste a good deal of time in wondering at each other : But I 110 shall pass by my admiration of my friend, and come at once to the point ; and, my Lords, I submit that the answer now made proves nothing by proving too much. What is the an- swer ? That this Court can take no notice of an objection to the want of the qualifications of a Sheriff required by the statute. What ! if I were to verify on oath, that he had forfeited hi& office before the return if I could make out that he was a maniac, or that he was under an arrest for fe- lony if I could make out that he was dead, and that some- body else had used his name, it would appear, from the ar- gument of my learned friend, that it is not for the Court to inquire by whom this important duty has been executed ; and that all allegations, as to his incapacity, prove too much, and cannot be gone into. My Lords, is it a matter in which the prisoner has no interest ? Is it a matter in which the Court has no jurisdiction, and no duty to inquire, whether the writ, handed in to it, is the writ of the proper officer, or of some individual who has usurped his character. If I could make out such a case, or to shew that the panel handed to your Lordship's clerk, is not returned by a person who is a She- riff at all, not by a person of age, not by a denizen of this land, yet, according to the statement of my learned friend, no objection could be maintained. I make no answer to that, because, by proving too much, it proves nothing to the pur- pose ; and, therefore, the only question is, whether the ob- jections I make, and propose to verify, are objections of a nature, that if supported, are sufficient. Lord President. -You do not aver, that he is not the She- riff of the county ? Mr Jeffrey. Not the Sheriff of the law. As to other matters, he may be the Sheriff of the county ; but, as to trials for Treason, as touching the qualifications of that officer, he is not the Sheriff required. Lord President. As to the nomination of the Sheriff of Westmoreland Mr Jeffrey. I pass by that. It is true, that in England the Crown nominates ultimately ; but is it the same thing if the Crown nominates out of three, or out of a general num- ber? Ill Lord Chief Commissioner Adam. How would it have been before the Jurisdiction Act ? Mr Jeffrey. That must have been regulated by statute. Lord Chief Commissioner Adam. The act says by the Sheriff, not by the Sheriff elected in a particular form. Lord Justice Clerk. The pannel is to be returned by the Sheriff. Mr Jeffrey. I do not deny that, but that Sheriff must be duly qualified. Lord President. There are different qualifications in Eng- land ? Mr Jeffrey. By the 9th Edward II., 2d Edward III., 4th Edward III., and 14th Edward III., it is provided, " That no man shall be Sheriff, except he have sufficient land within the same shire where he shall be Sheriff, to an- swer the King and people," And that is repeated in all the law-books since, as being the law. I can refer to statutes for the whole of the statements I have made. Lord President. The statute says the Jury shall be returned by the Sheriff. You say all the English statutes of treason must be considered as embodied in the law of Scotland then we have in the act of Queen Anne, a decla- ration that the Juries shall be returned by the Sheriff. Lord Chief Baron Shepherd. Suppose a Sheriff nomina- ted in a county in England, where he had not the qualifica- tion required by the statutes, and he continued to act and returned process, I apprehend that would be good. He might be amenable in penalties, for his conduct, for aught I know. Mr Jeffrey. So far from denying that the return must be made by the Sheriff, that is the basis of my argument. Lord President. Must not it be by the Sheriff qualified within the county ? The Sheriffs of Middlesex, Westmore- land, Durham, Norwich, and Bristol, are named, I do not know how, but when the act of King William says, that the panel shall be returned by the Sheriff', it must mean the Sheriff qualified according to the law of the place. Then when the act of King William is extended to Scotland, must it not in like manner mean the Sheriff of the county in Scot- land ? Such Sheriff is no more different from what was intend- ed by the statute of William, than the Sheriff of Westmore- landIt means the legal Sheriff of the county. Mr Jeffrey. That objection applies to the argument on the manner of nomination only : But I submit that all the Sheriffs existing at the date of the statute of King William- all the Sheriffs existing at the date of the statute of Queen Anne, were bound to be qualified in the manner I have sta- ted. They were bound to take the oath I have stated, and held their office, except in the instance of the hereditary Sheriff, only from year to year, and in particular with regard to the oath and qualification as to property. I ask the learned gentleman to shew an instance in which it was found, tha a Sheriff nominated any how, was held to be entitled to act any where, without a compliance with the act in those parti- culars, required in all counties and cities. Now, the objection I submit to your Lordships, is on the point of the want of qualification, and the want of the oath. That is an objection, that must be available to me if it is available in England ; and I say that the answer, that you must take such a Sheriff as you can get in Scotland, does not apply ; because they might have taken the requisite oath from the present Sheriff without requiring a new statute ; and be- fore discharging his duty, he is bound to take that oath, be- cause all persons are bound to do it. Surely there is nothing to prevent his Majesty's appointing, as Sheriff, a person qua- lified in point of property ; and therefore, I submit, if I could be heard in England, to say a Sheriff cannot act without being qualified, and if he does act without being qualified, that it cannot be a personal penalty against him, but his acts must be null in respect to any interests vested in the party on trial for his life, for whose behoof the qualifications are required : For the qualifications surely were not enacted to grace the dignity of the office, or to comply with the caprice of the So- vereign, but to secure the rights of the subject ; and if the Sheriff acts without them, he acts without warrant and autho- rity, and his actings are the actings of an unauthorised indivi- dual; and, therefore, upon that ground, I submit to your 113 Lordship no answer lias been made to my objection, and that that objection, standing on the authorities I refer to, will disqualify this person from acting, and will render this act null, of which your Lordship can take no cognizance on the present occasion. Lord Justice Clerk. It is clear to me, that there is no- thing in this objection, or that the law, declaring the course of proceeding to be pursued, would have been inoperative. It merely declares, that the form of process shall be the same the law the same the manner of trial the same- and, when we refer to the statutes on treason, they require a certain proceeding by the Sheriff. Of course the Sheriff in Scotland must be the person appointed to do the duty, or there could be no proceeding, for there is no foundation in law for saying that the King could establish a Sheriff pro re nata. He has a power to nominate Sheriff-deputes in Scot- land, but no authority to create a Sheriff pro re nata. What was the case with regard to the county of Mid-Lothian in 1794, for I will not allow it to be said the learned persons on that occasion could have shut their eyes to what is said to be clear law, by sanctioning what there took place. The Sheriff had taken no such oath as is now said to be neces- sary, nor had he given surety. In short, he was as much disqualified as this Sheriff, but that he held some land in the county yet that process went on, and the Jury proceeded in those trials, and convictions followed, and executions. To hold this was contrary to law, would be nothing short of a libel on that tribunal. Lord President. According to the argument of Mr Jef- frey, the Sheriff need not obey the writ indeed all our pro- ceedings will go for nothing, for we have been travelling about the country doing nothing, and we cannot suppose the legislature so stultified as to say a proceeding should go on, when it had not provided the means to take the first step. Lord Chief Baron Shepherd. If this objection be well founded, it is clear, ever since the statute of Queen Anne, all those who advised proceedings in England, as well as in Scotland, have been under a complete mistake and error ; for if the Sheriff of Scotland, qualified as the law of Scotland VOL. I. II 114 requires, and appointed as the law of Scotland requires him to be, is not to execute the process, there is no officer known to the law of Scotland who is. There may be casus omissus. Let us see whether this is possible, after all that has been done. In the h'rst place, in the year 1746, although the persons who were then taken up were tried in England, there were four or five Commis- sions issued to Scotland. I know there were, because I have seen the returns, and the proceedings under them. The only person who summoned the Grand Jury in Scotland, (and the same objection applies to the summoning the Grand Jury, as to the summoning the Pettit Jury,) was the She- riff, there was no officer but the Sheriff to execute those pre- cepts. He did execute those precepts, and returned the Grand Jury, and in one county bills were found. In the other they were not ; but it is clear that at that time it must have been very well considered, because the very intention of issuing those commissions was for the purpose of having the bills found, in order to proceed to outlawry upon them. In the year 1746, there were one or two commissions into Scot- land no other person or character to execute the process but a Scotch Sheriff, constituted according to the law of Scotland ; and that this character was considered a proper character to execute the process, is pretty clear ; for, in the reign of George the Second, an act was passed to institute certain proceedings to pursue persons to outlawry ; and the Sheriff of Scotland (who is coupled with steward) is desig- nated as the officer to execute the capias, the exigent, and all the other proceedings created by that statute. There is another observation to be made, by which it ap- pears that the Courts here have been acting illegally, if this objection is valid. Who executes the process of the Exche- quer ? The Sheriff the Sheriff who is named in the statute ; but if that does not mean Sheriff qualified according to the law of the place where he acts, but Sheriff according to the law of England, from the 6th Anne, there has not been a capias from the Exchequer that has been well executed. It is not possible that the legislature, at the time this act pass- ed, did not look at the Sheriff de facto as the proper person. 115 It is true, as has been stated, that in England there are a great variety of Sheriffs. The hereditary Sheriff in West- moreland, and formerly in Scotland, all of them were here- ditary, which was changed by the statute of George the Second. The Sheriffs of Bristol, London, Norwich, and many other places, are constituted quite of different sorts of persons and classes of men, from the Sheriffs of counties in England ; and, therefore, whatever is the qualification of the Sheriffs of counties in England, the only question is in exe- cuting the precepts in the law of high treason, or any other, whether the precept be a precept directed to the Sheriff as Sheriff to execute it. I confess, therefore, I have not the slightest doubt this is not a valid objection. Lord Chief Commissioner Adam.\ would not say a word on this subject, after the able manner in which it has been treated, were it not that I think the whole law on the subject may be derived from an accurate view of the two acts. With regard to the act of Anne, I agree that that transfers the law of England, as to treason, to Scotland, and with it all the regulations of the act ; then that brings it, in my opinion, to the consideration of the terms of the act of William III., that the prisoners " shall have a copy of the panel of the Jurors who are to try them, duly returned by the Sheriff, and delivered unto them, and every of them respectively, two days before they shall be tried for the same." Now, so stood the law at the time the act of Queen Anne passed, what had the legislature to contemplate ? It had to complete the law of England Sheriffs created by the Duke of Norfolk by the King by the people, and by local jurisdiction. Then what was the legislature to do when it transferred the law to Scotland, at that time under the hereditary jurisdiction, but to suppose that that office was referred to the officer known by that name ? Accordingly, antecedent to the year 1748, the Sheriff-hereditary, the Sheriff who executed for him, his deputy, would execute this warrant in the cases stated. Now, since that act passed, we have Sheriffs of a different descrip- tion, nominated by the King, with certain qualifications which entitle them to be so nominated those qualifications are not impeached in any way ; then, the question is, whether 116 the Sheriffs of this county, or any other county, who are to act under this Commission of Oyer and Terminer, have, or have not, acted regularly in the discharge of their duty, in the character of Sheriff; for that is all that is requisite ; how that Sheriff is to be constituted, is not stated by the legisla- ture. Upon these grounds, I am of opinion, there is no rear son to admit the challenge to the array. Lord Gillies. I am of the same opinion. Lord Advocate. My Lord, we will proceed first with the trial of Andrew Hardie. Mr Jeffrey. My Lord, I am not going to argue a point ; but, that nothing may be lost sight of, though it has not been argued formally, I beg leave to state, that it may ap- pear, that I request the Crown will challenge before the prisoner, and assign the cause of challenge before they do it. I know they are not likely to do it, but I make the request. I wish also to make another statement ; I observe that the Ju- rors are required to state their qualifications as to property ; now, there is another question which I should like to have put at the same time, I should like to know when they were summoned, and where they were summoned ; when they were summoned, may afford an objection under the statute of William and Mary, which requires that the Jury shall be summoned six days before the trial. I think it will save troubling other persons if the clerk asks the question ; I shall ask it if he does not. Mr Serjeant Hullock. For the purpose of saving time, I object to this course of proceeding. That act of Parliament is not law now ; I believe it has expired, or if it be in exist- ence, it is nothing to the prisoner when the Jury is sum- moned. It may be a matter of excuse to the Juror, that he has too short a notice to come ; but, in point of law, it will be found, I believe, that it is merely a ground upon which the Juror may say to the Court, I was only summoned last night, or the day before. It will be found, on minute in- vestigation, or tracing, which my learned friend has not an ppportunity of doing, that that act expired about the file of the reign of George the Second. 117 Mr Jeffrey. To that point I am not prepared to speak. I find, in the most recent books, that it is mentioned as an existing statute, for which I must refer to the wisdom of the Court, whom I must take leave here, as well as in every other matter, to consider as my assistants. I cannot argue that point, because I am not aware how the fact is, except from seeing it stated in books of authority, into which, within a short time, I have had an opportunity of looking ; but if it is required that Jurors should be summoned six days before the period of appearance, that is an objection which the pri- soner is entitled to insist on ; for if they are not duly summon- ed according to law, then they are not summoned at all. I may mention, in point of fact, Mr Chitty^s Discourse on Cri- minal Law, where it is stated to be a statute in observance at the present moment ; and, if it is in force, it requires that they shall be summoned six days before the day of ap- pearance ; it is not merely to be said they disregard the sum- mons, but they are not duly summoned at all. If a person chuses to appear without any citation or exhibition to him of authority, the Crown may put him in the list, and on the Jury at once. Lord President. You must have a list of the Jury, you know. Mr Jeffrey. ! apprehend the want of the regular mode of summoning is a defect of which the prisoner may take the benefit ; and I do humbly submit that a statutory enactment is not to be held to be made to provide against the smallest or the most unlikely thing of any to happen The summons is a thing required ex necessitate ; and if he is not duly summoned, he is not summoned at all. I submit, under these circumstances, I cannot speak to the point of the ex- piration of the statute ; but, if it subsists, I apprehend I am entitled to have the benefit of it. The act is the 7th and 8th William and Mary. Lord Chief Baron Shepherd. There is a qualification in the 5th section, and I will tell you what I understand by it. There are certain writs in England which have a certain number of days between the teste and the return writs from the King^s Bench ; other writs require no interval, such as precepts for Juries for gaol-delivery, and also precepts for Juries at a session of Oyer and Terminer ; and, in the 7th and 8th of William and Mary, there is a proviso, that no- thing in that act shall extend to any writs or precepts, except where there are six days between the teste and the return. Now, these precepts for Oyer and Terminer, and gaol-de- liveries, have six days between the teste and the return ; but yet that statute has always been understood, I believe, not to extend to any cases, except where it was necessary to have six days. Now, if the six days were imperative, every re- turn in England would be erroneous, because they are re- turned instantly. So, in the Crown Office, the writs for Oyer and Terminer, as well as in gaol-delivery, have no ne- cessary interval between the teste and the return ; besides which, there is another thing, that statute of King William certainly has expired ; and I do not wonder at a person be- ing misled, because, in the margin of Ruff head, you will find a note, that it is continued by the 6th George I., and by a statute of George II. But that is not so ; the first act passed for three years ; it was continued by the statute of Queen Anne, and by a statute of George L, for another certain time ; but the statute of George II., which is sup- posed further to continue it, is perfectly silent on the sub- ject ; and, in consequence of the efflux of time, the statute is gone. Even, if it were not so, the qualification, at the latter part of the statute, would shew that the serving the Jury six days before only extends to cases where, by law, a certain number of days are necessary between the teste and the return of the writ ; and, upon that practice, for the last thirty years, in the Crown Office, they have all proceeded. Lord President. It was a temporary statute, and expired of itself, if it was not renewed. Lord Chief Baron Shepherd. Besides that, I think it would only be an objection for the Juror himself. In the sta- tute of Westminster, Jurors are excused for certain causes ; and it has been decided, for ages, that such as these are ob- jections for the Juror, but not a ground of challenge for the prisoner. 119 The Jurors returned by tlie Sheriff were catted ovet 4 , when the following were excused. Sir Samuel Stirling, Baronet, on account of being a prac- tising advocate. Thomas Graham Stirling, Esq. on account of illness. John Alexander Higgens, Esq. on account of illness. Alexander Riddell, copper-smith, on account of deafness. John Walker, gentleman, on account of being in the mi* litia. Thomas Traquair, wright, on account of deafness. John Baird, Esq. on account of absence in London. John Cook, merchant, on account of age. James Potter, wood-merchant, on account of age. John Campbell, Writer to the Signet, on account of being the partner to the agent for the prosecution. Robert Muirhead, Esq. on account of illness. John Forrester, not properly described in the panel. John Clack, gentleman, on account of illness. William Oswald, on account of age. Robert Gow, gentleman, on account of illness. James Smith, Esq. on account of illness. \ James Cuningham, as being Lieutenant-Colonel of the Stir- lingshire militia, then on duty. David M'Lew, gentleman, on account of age. Joseph Douglas, gentleman, on account of illness. Thomas Kidston, on account of deafness and illness. William Russel, portioner, on account of absence at the time the summons was served. Charles Lenox Gumming, Esq. having left the county before the summons was served. Patrick Doig, Esq. as being a medical practitioner. The Jurors who answered to their names were again called over. Thomas Dundas, of Carronhall, Esq. challenged by the prisoner. 120 Andrew Hutton, writer sworn. James Bryce, bookseller sworn. James Wright, writer sworn. James Forman, bookseller challenged by the prisoner. Alexander Wilson, carpet-manufacturer sworn. Alexander Smith, of Canglor, Esq. challenged by the pri- soner. Daniel M'Ewan, grocer challenged by the prisoner. William M'Farlane, baker sworn. John Thompson, carpet-manufacturer challenged by the prisoner. John Birch, gentleman challenged by the prisoner. Andrew Neilson, gentleman challenged by the prisoner. Robert Young, carpet-manufacturer challenged by the pri- soner. William Glas, timber-merchant sworn. Robert Gillies, tanner challenged by the prisoner. Allan Johnston, architect sworn. Robert Hill Winter challenged by the prisoner. Alexander Bowie, mason sworn, James Reid, timber-merchant sworn. William Turnbull, gentleman challenged by the prisoner. John Cusine, gentleman challenged by the prisoner. John M'Donald, grocer challenged by the prisoner. Henry Johnston, of Meadowbank, Esq. challenged by the prisoner. John Bauchop, of Bogend, gentleman challenged by the prisoner. John Stewart, of Corntoun, portioner sworn. John Graham, Esq. of Myothill challenged by the pri- soner. Thomas Jarvie, of Risk, gentleman challenged by the pri- soner. Peter Littlejohn, of Clifford-Park, gentleman challenged by the prisoner. John Burd, of Seafield, Esq. sworn. John Wilson, carpet-manufacturersworn. The Crown made no challenges. 121 THE JURY. ANDREW HUTTON, ALLAN JOHNSTON, JAMES BRYCE, ALEXANDER BOWIE, JAMES WRIGHT, JAMES REID, ALEXANDER WILSON, JOHN STEWART, WILLIAM M'FARLANE, JOHN BURD, WILLIAM GLAS, JOHN WILSON. Lord President. I have to announce to all persons con- cerned, that no part of the proceedings on this trial, (and more especially the speeches of the counsel,) and no part of the evidence be published, till this and all the trials, in this and the other counties included in this Commission, be brought to a conclusion, otherwise, the severest punishments that this Court can inflict will be pronounced against them. It is essential to justice ; for it is in vain that witnesses are shut up, if they can read, the next day in the newspaper, what has been said by others in Court ; therefore, let all persons take care what they are about, for the severest punishment will be inflicted upon them. The Jury were charged with the prisoner in the usual form. The Indictment was opened by Mr HOPE. Lord Advocate. May it please your Lordships, Gentle- men of the Jury, After much unavoidable delay, we have at last arrived at that important stage of our proceeding when one of the parties, against whom the Grand Jury of this county has found a true bill, for the crime of High Trea- son, is placed in the hands of a Jury of his country, to have his guilt or innocence by them decided on. Gentlemen, much as it was to be wished that these trials should have sooner followed the occurrences which occasioned them, it is at least satisfactory to think that the person at the bar will suffer no injury by the delay; because this will be admitted, that these trials have come on at a moment when nothing connected with the state of the country, such as existed at the period when those events to which I have 122 alluded occurred, and which might be presumed likely to influence the minds of the Judges, is at all felt. The country is now perfectly tranquil, and you are consequently placed in circumstances which must enable you fairly to discuss the case between the prisoner and the Crown. A part of this delay has been occasioned in going through the neces- sary forms, in which this Court has been occupied nearly three weeks, forms which may appear tedious and unavail- ing, but which are of importance for securing that great ob- ject, namely, a fair and impartial trial to the person now at your bar. Gentlemen, it must form a pleasing reflection to observe, that, in our sister country, whence we borrow this branch of our law, infinitely more pains is bestowed in securing to the prisoner the means of a fair trial, in the case of high treason, than of any other offence. The prisoners are, by the sta- tute of 7th of King William, entitled to be furnished with a copy of the indictment at least ten free days before they can be called upon to plead : they are entitled, at the same time, to be furnished with a list of the Jurors who are to judge between them and their country, and of the witnesses who are to prove the case. It is declared further, that every overt act shall be proved by two witnesses ; and, finally, they are entitled to what no other persons have the advantage of, namely, counsel, not only to plead points of law, as occurs in other cases in England, but to speak to the whole facts of the case, as exhibited against them. These advantages, Gentlemen, may look small in our eyes, who are accustomed to see them applied to every case in this part of the kingdom ; but, in two respects, even here these prisoners have an advan- tage : they have the advantage of challenging, without cause, the Jurors who are to judge of their case ; and thus, in some manner, to have a Jury of their own choice. There is another advantage they possess, in which I greatly rejoice ; they can be put on their trial solely in consequence of the verdict of a Grand Jury of their country. In this part of the kingdom, you know, the right to determine who shall be prosecuted, is vested with the officers of the Crown ; and, though it is satisfactory to know, that no complaint has ever been stated 123 of an unjust prosecution having been commenced, or of one that called for trial having been omitted, yet my learned friends will concur with me in feeling that it is most satisfac- tory to us, that of that responsibility we are, in the present instance, relieved ; and that, in this case, it has been left, not to us, but to a Jury of this county, to decide how far there are grounds of accusation. This, you will observe, is the only thing that has been found by the Grand Jury ; they have merely found, from the evidence before them, that there are grounds to put the man, now at the bar, on his trial ; they have not found grounds for his conviction ; on this point it is your duty now to decide. Gentlemen, in most cases, into which I have glanced, of a similar nature, I have seen it usual for the counsel, in my situation, to point out to Juries the great importance of the duty they have to discharge, and the necessity of banishing from their minds every thing they have heard out of doors, and every thing that can influence their judgments, but the evidence they shall hear. I conceive such observations are unnecessary to you who have been before Jury-men. Though our forms are English, and the law is of that description, yet the rules by which you are to be guided are the same in this as in other cases. You are to judge, from the evidence, of the guilt or innocence of the party ; you are to give him all the benefit of doubt, if the case comes to a point of doubt ; on the other hand, if you are satisfied, from the evidence, that guilt is brought home to this individual, it will be your duty to find a verdict such as will be satisfactory to the country, and consistent with the evidence so laid before you. Gentlemen, it is my duty, and it is a proceeding that does not occur in general in our trials, as Crown Counsel, to ad- dress the Jury at this period of our proceeding ; perhaps, however, this is not unuseful, because it often occurs in our trials that the Jury are uncertain to what points to direct their attention. Knowing the scope of the evidence is a mat- ter which cannot fail to be of advantage, and this being a point which is regulated in the sister country, it must be ob- served on this occasion. It is my duty, therefore, to state to 124 ?''- '* ' . ,you shortly, the law, as applicable to this case, and the facts ^hich we propose to instruct in support of it. Gentlemen, the indictment which has been read contains, as has been stated to you, four different counts or charges ; .- two of those are founded upon a very ancient statute of 25th Edward III., cap. 2; the other two are founded upon a more modern statute, namely, of the 36th George III., cap. 7. This last, however, is generally considered as not, in truth, making any alteration in the law of treason, but merely declaring certain acts to be treason, which, under the former act, were overt acts of treason ; in fact, however, the four counts amount to two charges, the one, that the prisoner was guilty of certain acts inferring his determination to ima- gine or compass the death of the King, the other, that he was guilty of levying war against the King. Gentlemen, in stating the law to you, upon the subject, as applicable to the present case, I certainly have to regret that time has not permitted the learned Judge, now presiding, to comply with the wish of the Grand Jury of Stirling, in giving to the public his Charge to that Jury ; for, if that had been in your hands, it would have relieved me from saying any thing on the subject ; as you there would have seen the law, with respect to this crime, explained,. in all its bearings, in a manner that could not fail to carry conviction and satis- faction to your minds ; that, however, not yet being accom- plished, I am under the necessity of stating to you what I understand to be the law, as applicable to the present case. Gentlemen, with respect to the first of these offences, charged against the prisoners, namely, compassing and ima- gining the death of the King, I am unwilling to enter on it, because I am of opinion that the charge against this indivi- dual comes more distinctly under the second head, namely, that of levying war against the King, in his realm. With respect to the first charge, Gentlemen, that of compassing or imagining the death of the King, you must well know, that, in the case of individuals, a capital sentence does not follow in the case of homicide, unless the person be ac- tually killed ; but standing in the high situation which the 185 f|r ._., Sovereign of these dominions occupies, the law has been' careful to guard his person, by affording it special protection, and has made the mere intention, or planning to take away the life of the King, equal to the actual murder in the com- * mon case ; provided always that such intention be proved by acts, because, the mere intention, if kept in a man's own breast, cannot be cognizable in this world, or by any human tribunal ; but when such intention is made apparent by act, the law declares it treason, though unaccompanied by the death of the King. Gentlemen, by the construction of all the lawyers whose authority is listened to in England, this is not confined to the actual imagination to put the King to death ; but it applies to every attempt indirectly by which that life may be put in danger ; to all attempts against the government of the country ; for every one must feel how impossible it is to carry into effect any proceeding having for its object the overthrow of the government of the country, without putting the King's life in peril ; and accordingly it has been held, that a conspiracy of this description does itself constitute an act of imagining the death of the King ; in con- firmation of which it may be known to some persons here, that in our own country, about twenty-six years ago, two persons, of the names of Watt and Downie, were tried at Edinburgh, and one of them executed for a conspiracy to overturn the government, which was held to amount to a compassing the death of the King. Gentlemen, I say I am unwilling to dwell on this part of the charge, because, in truth, when I state to you that the nature of this charge is to apply to an actual violent attack by men in arms against the King's forces, it is needless to prolong the discussion regarding the imagining the death of the King ; I must, therefore, direct your attention to the other part of the case, namely, levying war against our Lord the King in his realm. It is under that charge that I conceive the facts that I am to state most distinctly and clear- ly come ; and, therefore, I shall very shortly direct your at- tention to that count. Gentlemen, to con stitute this charge, it is ntccfe^arythat two things should be made out to you by the overt acts. In 126 the first place, that a war has been levied ; and, in the second place, that that war has been against the King ; because, if the war or attack shall be of a private nature, not for a general purpose, but connected with a private grudge of any kind, that is not levying war against the King. Gentle- men, that attacking the King's forces by arms is necessa- rily a levying of war against the King, is a proposition which must be so apparent to the good sense of every man who hears me, that if I were to dwell on that subject, I should deservedly fall under your censure. I need hardly quote authorities to support a proposition, which, if it were not law, there seems to be an end of all law of treason. Foster says, " Attacking the King's forces, in opposition to his authority, upon a march or in quarters, is levying war against the King." If, then, I can make out the fact, that the prisoner at the bar did, while in arms, accompanied by others, attack the King's forces, in opposition to his authority, there can be no doubt that this was levying war against the King. It is not necessary for my purpose, but it may illustrate the matter, to mention, in the second place, that it is not re- quisite even to constitute a legal levying of war, that there shall be a positive attack upon the King's forces ; if there shall be an insurrection with a view to that attack, if all pre- vious proceedings are arranged for the attack, the fact of the individuals not persevering, does not alter the case. Ac- cordingly the same author that I have quoted mentions upon this subject, " Insurrections for redressing national grie- vances, or for the expulsion of foreigners in general, or in- deed of any single nation living here under the protection of the King, or for the reformation of real or imaginary evils of a public nature, and in which the insurgents have no spe- cial interest, risings to effect those ends by force and num- bers, are, by construction of law, within the clause of levy- ing war ; for they are levelled at the King's crown and royal dignity ;" and accordingly, Gentlemen, in the course of a set of trials which occurred at Derby, copies of which are on the table, and which were conducted by a learned Judge, now on your bench, persons were convicted and executed for 127 levying war, where the fact was only an insurrection to levy war, and where the individuals concerned took fright, and did not chuse to meet the troops sent against them ; there, where there was no actual attack, still the insurrection being complete, the purpose being clear, that was held a levying of war against the King, and the persons suffered accord- ing 1 ^ Now, Gentlemen, as this is the nature of levying war, so levying war must be against the King, that is, against the King personally, or against his government or constituted authorities, the purpose must be a general one, nothing private, nothing unconnected with the general government of the country ; but if it be intended against the King per- sonally, that is a certain treason : to attack the King person- ally, or his troops, which is the same thing, is a direct attack en the King ; but it may be an indirect attack on the King, if it attacks his government ; and of this you have a recent example in the case of Thistlewood, where the persons were convicted of levying war against the King, for doing what ? for an attempt to put to death his ministers. That was an attack, not upon the King personally, but upon his govern- ment; and, as such, it was ruled by all the Judges of Eng- land, that it amounted to the crime of treason, by levying war. Gentlemen, I really feel unwilling to dwell upon these particulars, because the case which I have to state to you is of so simple a nature, and depending on so remarkable an occurrence, that to take up your time in commenting on all the constructive treasons, would be a waste of your indul- gence ; therefore, under the conviction that it cannot be dis- puted, or denied, that a party of the subjects of this country, who shall dare to arm, and present themselves so armed, to resist the military authority of this country, with a view to overturn the government of the country, is treason I say, under the conviction that no person will dispute that to be the law, I shall now direct your attention to the facts of the case which I expect to prove, in order to convince you that this unfortunate individual has been guilty of the act to which I have alluded. Before I do this, I would just make one observation, namely, that, while it is usual that the indictment should 128 specify a variety of overt acts, in support of the charge, it is not necessary that I should prove, to your satisfaction, all the overt acts. Mr Justice Foster says, in page 194, " In every indictment for this species of treason," that is, compass- ing the death of the King, " and indeed for levying war, or adhering to the King's enemies, an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defence. But it is not necessary that the whole detail of the evidence intended to be given should be set forth ; the common law never required this ex- actness, nor doth the statute of King William require it. It is sufficient that the charge be reduced to a reasonable cer- tainty, so that the defendant may be apprised of the nature of it, and prepared to give an answer to it. And if divers overt acts are laid, and but one proved, it will be sufficient, and the verdict must be for the Crown ; and, therefore, where divers overt acts are laid, and the indictment, in point of form, hap- peneth to be faulty with regard to some of them, the Court will not quash it for these defects ; because that would deprive the Crown of the opportunity of proving the overt acts which are well laid. 1 ' Therefore, Gentlemen, in the facts which I am to state, it is not necessary for me to shew particulars applicable to each of these nineteen overt acts ; but if I shew, to your satisfaction, that there are one or more of these sup- ported by the facts I am to detail, that is sufficient, in or- der to ask you for a conviction of the prisoner. Gentlemen, in stating the facts of the case, it will not be necessary for me to go back far previous to the occurrences which took place upon the 5th of April last. It is, however, fit that I should notice, that betwixt the night of Saturday, the first of April, and Sunday morning, the second, there was posted up, all over the town of Glasgow, and in various parts of the adjoining country, an address to the inhabitants of the united kingdom, containing matters of the most treason- able nature, an address which no doubt many of you have heard. It is quoted at length in the indictment, and a copy will be laid before you in evidence ; it is long, and I will not go through the whole of it ; but I shall quote one or two parts of it, as shewing the treason which this indictment 139 charges. It is stated to be, " An Address to the Inhabi- tants of Great Britain and Ireland ;" and commences thus : " Friends and Countrymen, roused from that torpid state in which we have been sunk for so many years, we are at length compelled, from the extremity of our sufferings, and the contempt heaped upon our petitions for redress, to as- sert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misrepresented by designing men, would have united all ranks,) have reduced us to take up arms for the redress of our common grie- vances." It then goes on to detail the various reasons which have led these persons to this result ; and then pro- ceeds to call upon the soldiery to abjure their allegiance : " Soldiers ! shall you, countrymen, bound by the sacred obligation of an oath to defend your country and your King from enemies, whether foreign or domestic, plunge your bayonets into the bosoms of fathers and brothers, and at once sacrifice at the shrine of military despotism to the un- relenting orders of a cruel faction, those feelings which you hold in common with the rest of mankind?' It then di- rects them to turn their attentions to Spain ; and after go- ing on in the same strain, it proceeds thus : *' We earnest- ly request of all to desist from their labour from and after this day, the 1st of April, and attend wholly to the recove- ry of their rights, and consider it as the duty of every man not to recommence until he is in possession of those rights which distinguishes the freeman from the slave, viz. that of giving consent to the laws by which he is to be governed. We therefore recommend to the proprietors of public works, and all others, to stop the one, and shut up the other, until order is restored, as we will be accountable for no da- mages which may be sustained, and which, after this pub- lic intimation, they can have no claim to. And we hereby give notice to all those who shall be found carrying arms against those who intend to regenerate their country, and restore its inhabitants to their native dignity, we shall con- sider them as traitors to their country, and enemies to their King, and treat them as such. By order of the Committee VOL. i. i 130 of Organization for forming a Provisional Government.*' Gentlemen, you will have an opportunity of considering the nature and terms of this extraordinary manifesto, exhibited in Great Britain by persons describing themselves " The Committee of Organization for forming a Provisional Go- vernment," and holding out a determination to take up arms against the constituted laws of the land, and calling on per- sons to give obedience to their orders to call justices of the peace to assist them and giving every possible direc- tion that could lead to or excite insurrection and rebellion. This was the manifesto exhibited in the town of Glas- gow ; and it is necessary I should connect the individual at the bar with this document, though I may first state the ef- fect produced by its publication, namely, that though pre- vious to that time the inhabitants of Glasgow were quietly employed in their occupations, and all the manufactories at work, yet the consequence of that manifesto was, that upon the Monday, the whole of the manufactories, with the ex- ception of one or two, were stopped ; and I believe there was hardly a weaver that did not shut up his house and remain idle for a considerable time. The population of that great city assembled in the streets, where they formed themselves into columns, and marched with the military step. The shops were closed, and business generally stopt. In short, Glasgow presented a scene which you will hear described in evidence, and which, having personally wit- nessed, I can safely say, was sufficient to excite serious alarm in the minds of every individual. Gentlemen, it will be proved, that upon Sunday, the 2d of April, a magistrate belonging to that county and city, knowing that this address had been posted up in Glasgow, thought it his duty, as well became him, early in the morn- ing to go abroad, and, if possible, to take means to remove this inflammatory production ; and in taking that measure, you will", no doubt, think with me, that his conduct was highly praiseworthy. He accordingly went to a street in Glasgow, I believe part of Duke Street, where he found upwards of thirty persons assembled round a watch-box 131 where this address was posted up, one of the individuals being employed in reading aloud the terms of the address. Gentlemen, Mr Hardie, the justice of the peace to whom I have alluded, immediately thought it his duty to attempt to take down this treasonable address, and accordingly he made an effort, but in doing so he was seized by this pri- soner at your bar, who took him by the middle, and threw him into the street. Mr Hardie then stated, that he was a magistrate, that there might be no misunderstand- ing as to his character. In answer, they called on him to shew his authority, as if it could be supposed a magis- trate carried the commission of the peace about with him, or could be required to produce it. Notwithstanding he thus declared he was a magistrate; and although he was known as such to many of the persons present, he was re- sisted by violence to that degree, that for his own personal safety he was obliged to leave the spot, the address remain- ing posted up as it was before. These circumstances seem very material in the present case, as connected with the foresaid address ; they prove the prisoner's knowledge of the contents ; perhaps more, for I apprehend that a per- son who resists the removal of such an address, is as acces- sary to its publication as the person who puts it up. Now, Gentlemen, having thus commenced upon the Sun- day with a knowledge of this address, the next place where we find this individual is, upon the evening of Tuesday, at a meeting of persons designing themselves radicals, at a place called Gadshill, in the neighbourhood of Glasgow ; to this spot this individual repairs, according to his statement of it, about ten o'clock on the evening of Tuesday, the night in which it was generally believed there was to be a rising of the people all around the country. It will be proved to you further, Gentlemen, that this individual believed there was such a rising, nay, that he understood there was a rising all over England; that England was up, and that the mail coaches were next morning to be stopped. These facts will be proved to you in a manner which will leave no dispute of their truth. 132 Now, under these impressions, this individual, according to his own statement, proceeds at ten o'clock at night to this meeting in the neighbourhood of Glasgow. What passed at that meeting, I believe will not appear in evidence before you; but after this meeting had been collected for two hours r at twelve o'clock at night a party of it, consisting of from thirty to forty, marched off, armed ; I do not say all armed with regular arms, but all armed with guns or pikes,, or other weapons ; and in particular, this prisoner, Hardie, marched off at that time, and there is reason to believe he was the leader and conductor of that marching. This is the reason we have singled him out as the person to be first tried. He was armed with a musket, and the pur- pose of that marching will be explained by the prisoner's own words it was to join others who were expected to come to Glasgow, in order by force of arms to take posses- sion of that city, and thereby to do all in their power to overturn the government of the country. Gentlemen, having thus marched otfj the first place to which they repaired was a village of the name of Condorrat, in the county of Dumbarton ; they arrived there, and met a great many other individuals, several of whom will be proved to be now at your bar; and having been so joined, they pro- ceeded onward toward Falkirk, in order to join other par- ties, who, from the town of Camelon and its vicinity, they believed to be in arms, and with whom they were to return to Glasgow, The next place we find them at, I think, in point of time, is Castlecary Bridge, about six o'clock in the morning of Wednesday, the 5th of April } they there stopped to breakfast, and had porter and bread, which was furnished to them by a person who will be a witness before you ; and there, Gentlemen, it appears that the person who was the leader of this meeting proposed to the landlord to take a bill at six months, for payment of this breakfast, amounting in the whole to the sum of eight shillings ; it appears that the landlord was not fond of this negociable security, and therefore was extremely anxious that he should receive cash 133 for the provisions that he had furnished them, and accord- ingly the money was borrowed, part of it from the indivi- dual now under accusation before you, and the landlord was glad to accept of seven-and-sixpence as his reckoning. It was insisted before that was paid, that the landlord should grant them a regular receipt, and accordingly it will be proved to you by him, that one of the party made out a receipt in the following extraordinary terms : " A party called, and paid for porter and bread seven-and-sixpence." What the object of this extraordinary document was, I leave you to consider; whether repayment was intended to be claimed hereafter I do not know, but such was the fact After leaving Condorrat, the party, it appears, divided in- to two divisions, one under the directions or command of another prisoner, who is now at your bar, of the name of Baird, and which went by the banks of the canal ; while the other party, headed by the prisoner at the bar, pro- ceeded by the highway, and soon after leaving that village, proceeded forcibly to take arms from various houses on the side of the highway ; so as to arm themselves, for purposes which I shall hereafter state. But I should mention that while at Condorrat, the prisoner at your bar was procuring bullets and gunpowder for those arms, with which his party was then provided ; it is material to keep that fact in view. At Condorrat, the first act was to procure bullets for those pieces they had, and gunpowder; still the greater n umber not having arms of that description, they proceed- ed to get arms, and they succeeded in procuring in one in- stance a musket, and I believe some other weapons. This party then proceeded on by the high-road towards Camelon. and they were met by a gentleman of the Kilsyth troop of cavalry, who was returning to his duty, after an absence of a night. This individual was stopped by the party, who endeavoured to take his arms ; but this he re- sisted, saying, they should not have his pistol, but they were welcome to the contents ; and he was allowed to pro- ceed, and did proceed, towards Kilsyth, where the King's troops were stationed. 134 After having met this gentleman, they met another indi- vidual of great importance in this case, namely, a private Hussar who was proceeding with dispatches from Stirling ; and this person they also stopped and endeavoured to take possession of his arms. The circumstances connected with this will be fully detailed to you by the individual. These persons drew themselves up in battle array across the road under the direction of Hardie who arranged them, and who was one of the individuals who laid hold of this man by his bridle, and endeavoured to take from him his arms. The Hussar, however, contrived to convince them that his poli- tical principles were favourable to theirs, and prevailed on them not to take his arms; and they put into his possession a copy of that treasonable address which was posted all over Glasgow. This paper was given to the soldier in the pre- sence of Hardie, and it was taken from among a great number of similar papers which were exhibited to this in- dividual. Thus, in a second instance, did the prisoner at your bar connect himself with that treasonable document. After having thus met this soldier, they proceeded on to- wards Camelon, and there it was found that their expecta- tions, in regard to there being a great number of persons assembled to join them, were not likely to be realized, and that the people in that quarter were disposed to remain quietly at home. Thus disappointed, it appears that this party on the high road having joined the other party which went by the bank of the canal, they consulted together, and considering that it would be in vain to go further, they thought it wise to repair to an adjoining common, and re- main there till dark, when they should again return to Glas- gow. There, accordingly, they went. The common is named Bonnymuir, and is situated about four miles from Falkirk. Gentlemen, the Hussar who had been stopped by this party, immediately proceeded to the quarters of his troop, then stationed at Kilsyth, and communicated the particu- lars of what had occurred to him on the road, and of this armed party having proceeded eastwards. Having men- tioned this to the officer of the 10th Hussars, then sta- tioned at KHsyth, means were immediately adopted for pursuit. It so happened} that that troop of the 10th Hussars had marched upon the Tuesday from Perth to Stirling, being a distance, I believe, of five or six and thirty miles ; and after having put up their horses at Stirling to remain there all night, an order came for their still farther advancing, and in the course of the morning of the Wed- nesday they had to proceed sixteen miles farther ; so that they had performed a very long and forced march, and, therefore, it will not appear surprising that their horses were not well calculated to proceed on a farther enterprize. This was supplied in a manner highly creditable to the other soldiers, namely, this troop of Kilsyth cavalry, who agreed that a part of their body should go on this enterprize, and that the party of the lOth Hussars who required to be mounted, should have the use of a part of the yeomanry horses. To any individual who knows the value such men set on their horses, this was no slight proof of the just and right feelings of these brave yeomen. The party was thus composed partly of troops of the line, and partly of yeo- manry, and it was commanded by an officer of the 10th Hussars, whom you will see, and whose conduct on that occasion, I am confident, will appear to have been such as will leave the most favourable impression upon the mind of every individual who shall hear his evidence. Under the command of this individual, assisted by the officers of the yeomanry, this party set forward in pursuit of these armed individuals, and having been informed that they had pro- ceeded to the moor I have mentioned, they followed them there. It appears that the soldiers were not discovered for a considerable period, but when they were observed, they were received by the people on the moor with a cheer. It will be proved, that on the nearer approach of the soldiers, the party, consisting of thirty or forty, rose at once and gave three cheers, and ran down the hill towards a wall there situated, about five feet in height, across the line in which the King's troops were then advancing ; and having placed themselves in line behind that wall, so soon as the King's troops came within reach of them, they fired on them, before any at- 136 tempt of the kind had been made by the troops. These troops marched up, and the commanding officer endea- voured to prevail on the insurgents to surrender while he was yet on the opposite side of the wall, but all remonstrance was in vain ; and though he exposed himself in a manner hardly prudent, and was in danger of being shot on the spot, and was wounded severely, yet his advice and efforts were entirely thrown away ; and it was only by discovering that there was an opening in the wall that they were able to approach these persons, and by making a sort of irregular charge, to effectuate the defeat and discomfiture of this body. It did not, however, end without those infatuated persons making every possible resistance, by firing at the troops, and using the pikes ; and among those thus engaged it will be proved that the unhappy individual at your bar was most conspicuously active. These individuals were at last overpowered by the cavalry, and nineteen of them were taken prisoners. One of them was so much wounded, that he was left on the field, and afterwards escaped ; but the other eighteen were taken prisoners by the soldiers, and marched to the castle of Stirling, and have been kept in custody from that time to the present, so that there cannot be a doubt of those being the self-same individuals who were engaged in this gross and traitorous outrage, which I have now taken the liberty of detailing to you. Gentlemen, I omitted to notice, that along with these individuals there were taken a quantity of arms the arms with which they were provided. There were taken five muskets, two pistols, sixteen pikes, one hay-fork, one shaft, and a bag of ammunition, containing a quantity of ball car- tridges. It will be proved to you, that most of the pri- soners were provided with ball cartridges; thatT their pieces were loaded, and that they used them when so loaded; it will be proved that the serjeant and various others were wounded by the shot fired at them, and one horse was killed and others wounded by shot ; and when the muskets were taken to Stirling and drawn, several had balls in them, besides this bag of ammunition, to be used in case of any deficiency. 137 Gentlemen, having stated these things to you, I appre- hend that, without any commentary, you will be complete- ly satisfied that this case, if proved because that remains yet to be done does amount to an act of levying war against the King, for which I am entitled to ask a verdict at your bands against the prisoner. That there was a levying of war, no man can doubt; the troops were attacked; and though the party failed, it matters not : if we were to judge in such a question by the adequacy of the means, it is impos- sible to say in what case treason could be proved. Every one must be satisfied that no means that could have been raised at that time, could have been adequate to such an end. If the whole inhabitants of Glasgow and the four surrounding counties had all risen to a man, my opinion is, that the true valour and loyalty of Scotland is such, that every one of them would have instantly been put down, and the ringleaders brought to punishment for the offence. I say, that no means that could be devised would have been ade- quate to accomplish the end ; but you are not to inquire into these particulars you will look to the views and in- tent of the individuals. These persons had a most mis- taken view of their means, but that cannot benefit them in the present case : they believed the whole country was in arms ; they went out under the conviction of victory, and that their means were sufficient; and they attacked the troops under the belief that they were in condition to ac- complish the object they had in view. I therefore submit to your sound judgment, that there was here a levying war, and that the intent was one connected with the overthrow of the government of the country, and of no private nature. If a different object shall be stated, it will be for the other side to prove it, and for them to shew for what purpose these persons came twenty miles in the night, and then engaged with a party of cavalry they never saw before. That the real object in view was the public purpose which I have stated to you, I believe and trust I shall be able to prove, not only by the acts of these persons, but by their own acknowledgments. For there will be exhibited in evidence a declaration of this individual himself; not one 138 declaration, indeed, but three successive declarations, taken before three different magistrates, and in one and all of which he acknowledges that he was in arms; that he re- sisted the King's troops ; and that his object in so doing was to overturn the government of the country. He thus excludes himself from the only plea that could possibly now avail him. With these observations, Gentlemen, I leave this case in your hands. If I have erred in stating any thing wrong in point of law, it will be rectified by those who are alone competent to direct you on this occasion. It is neither my statement nor that of my learned friend that ought to influ- ence you. You will look at this case, painful as it is, and do your duty. The defence will be maintained by my learned friend, with the splendid talent which he possess- es; and you will hear from the Bench all the law that the Supreme Courts of this country can furnish. You will weigh, coolly and deliberately, the evidence to be laid be- fore you, and return that verdict which the evidence will warrant ; and whether it is a verdict of acquittal or of con- demnation, as I am confident it will be satisfactory to the country, so it will be perfectly satisfactory to me, who, in bringing this case fully and fairly before an intelligent and impartial Jury, have done all, and nothing more than my duty required. 139 EVIDENCE FOR THE CKOWN. JOHN REN N IE, residing at Smithyhill, in the Parish of Kilsyth, and County of Stirling, Cattle-dealer sworn. Examined by Mr Solicitor-General. Q. Are you a private in the Kilsyth troop of Yeomanry ? A. Yes. Q. Were you so in the beginning of April last ? A. Yes. Q. Do you recollect having gone along with that troop to a place called Bonnymuir ? A. Yes. Q. On what day was that ? A. On the 5th of April, I think. Q. Will you state what took place when you went there along with your troop ? A. We went up there there was a number of men there on the back of the dike ; and before we went within the distance, they commenced firing, about an hundred yards or near. Q. The men you speak of came up close to the other side of that dike? A. Yes. Q. And they then commenced firing ? A. Yes, they then commenced firing. Q. Look at the man at the bar was he among the number of people there i A. Yes. 140 Q. How was he employed what was he doing ? A. He had a pike, I think, to the best of my judgment. Q. Was he active in using it ? A. I am sure I could not say as to that. Q. Look among the other men that you see at the bar there were any of the other men there P A. I saw this fellow here this one here (Baird) and this one (Murchle) here is another this fellow here (M'CuUoch.) Lord President. Do you recognise any more ? Mr Serjeant Hullock. It is not material, my Lord. Lord President. No : there are none of the rest at pre- sent upon their trials. Mr Solicitor-General.- How were they armed what arms had they ? A. This fellow here (Baird) had a short pistol this fel- low (Murchie) had a gun. Q. Had the rest pikes, or what ? A. This fellow who is here had a pike (M'Culloch.) Q. What happened next after they fired upon you from the other side of the dike did you advance ? A, Yes, we advanced to the dike. Q. Did you go over the dike? A. Through a slap in the end of the dike, where it waa broke down. Q. Then, having got round upon them, were they taken prisoners ? A. I saw Baird on the spot, and some were taken at some distance, and brought back. Lord President. You took Baird on the spot ? A. Yes, I saw him on the spot. Mr Solicitor-General. Did you take Baird on the spo t ? A. No, I saw him upon the spot. Q. Was there any ammunition found any bullets or cartridges ? A. I cannot say I am sure. Q. Did you see them searched ? A. No; I was not there at the searching of them. Q. Did you accompany them afterwards ? 141 A. Yes. Q. Where? A. To Stirling. Q. You saw them taken to Stirling Castle? A. Yes. Q. Was there any body wounded ? A. Yes, there were three or four men wounded. Q. Of the troop ? A. No : none of our troop was wounded, that I know of. Q. Were any of your horses wounded ? A. Yes, there was one killed, and my own horse was wounded too. Lord Chief-Commissioner Adam. What with? A. With slug, I think. Mr Solicitor-General. Was there a party of Hussars along with you ? A. Yes. Q. Were any of those wounded ? A. One, I think, that I know of. Lord President. What regiment of Hussars was it ? A. The 10th. Mr Solicitor- General. Do you know in what county Bonnymuir is? A. In Stirling. Lord President. Was the spot where you met them, where the action took place, in Stirlingshire ? A. Yes. Lord Advocate. Do you know what parish it was in ? A. In the parish of Falkirk. Cross-examined by Mr Jeffrey. Q. You went to look for these men, did you ? A. I did not know where I was going. Q. Had you gone off the road before you saw them ? A. Yes, we left the turnpike road. Lord President. You say these people were taken pri- soners after you passed this slap in the dike, did they make any further resistance before they were taken prisoners ? 142 A. Yes, some of them did. Q. Do you remember how many shots, or about how many shots, were fired before they were surrounded ? A. I could not say to the number of shots that were fired. Q. More than one ? A. Yes, I am certain there were more than one. Q. Those two horses that belonged to your party were wounded with shot ? A. 1 could not say how the other horse was wounded. Q. Your own was wounded with slug ? A. Yes. Lord President. Prisoner, have you any question to ask this witness ? Hardie. None. JAMES HARDIE, Esq. residing in Glasgow, one of His Majesty's Justices of the Peace for the County of La- nark sworn. Examined by Mr Serjeant Hullock. Q. Where do you live ? A. I live in Duke Street, Glasgow. Q. Are you a Magistrate for the County of Lanark ? A. I am. Q. How long have you been so ? A. About three years. Q. Have you been an acting magistrate, during that time, for the county ? A. I have. Q. Do you remember being in Duke Street on the morn- ing of Sunday the 2d of April last ? A. I do. Q. About what hour might that be ? A. It was from eight to half-past eight, I think. Q. Was your attention attracted by any thing, and what, whilst you were in that street at the time you allude to I 143 A. It was, by a crowd of people on the south side of the street. Q. Was the crowd walking or standing still I A. Standing still. Q. Did you go towards the crowd ? A. I did. Q. Look at the person at the bar did you ever see him before to-day ? A. I did. Q. Did you see him at any time in the course of the Sunday morning of which we are now speaking ? A. I did. Q. Where first ? A. Amongst that crowd. Q. When you went up to the crowd, what were they doing, or any of them doing ? A. They were all looking at a placard that was pasted upon a watchman's box. Q. Were any of them, as far as you know, reading that placard ? A. There was one man reading it aloud. Q. Was he reading it sufficiently aloud to enable you and the rest of the party to hear what he was reading ? A. Perfectly. Q. Did you hear him read any part of that placard which was so pasted up ? A. I did. Q. Were you in a position, at the time you so heard him read it, to see whether he read it faithfully or not? A. Yes. Q. Did you follow him at the time that he was reading it ? did you read it yourself whilst he was reading it aloud ? A. I did. Q. Was the person at the bar, at that time in a situation to hear as well as yon what the man read ? A. Yes. Q. Did you upon that occasion do any thing, or attempt to do any thing ? 144 A. I did I pressed through the crowd, for the purpose of taking it down. Q. Did you accomplish your object ? A. No. Q. Why not ? A. I was prevented by the prisoner at the bar, and some four or five others. . ' Q. In what way were you prevented by the person at the bar how did he interfere ? A. He seized me, and threw me off the pavement hustled me off the stones, would be a better expression than that. Q. Did he come in contact with your person ? A. He did. Q. .Describe the manner. A. He took me by the collar. Q. Did he seize you with his hands ? A. He did. Q. On one side, or on both sides of the collar ? A. I am not exactly certain, of one side I am sure. Q. How many other persons joined him ? A There might be four or five. Q. Did they remove you from the pavement ? A. Yes. Q. Did you state any thing to them what you wanted to do? or did you say any thing upon this occasion ? or did they say any thing to you ? and what ? A. After I was thrown off the pavement, I said it was a most improper address to remain there, and insisted on ta- king it down, and told them I was a magistrate. Q. Was this after the reading of which you spoke at first? A. It was. Q. Then your observation occurred after the man had read a certain portion of that address ? A. It did. Q. Could the nature of that address be ascertained or learnt from the parts which he so read ? 145 A. I do not exactly understand the meaning of the ques- tion. Lord President. Did the man read enough of the pro- clamation that the by-stauders could understand generally the purpose of it? A. Perfectly. Mr Serjeant Hullock. What made him finish reading ? had he got to the conclusion ? A. I did not permit him to read to the end of it. Q. Then, by your interposing in the way you have been describing, he finished reading ? A. Yes. Q. When you made the observation which you have just now stated you made about its being an improper paper to be posted up, do you recollect what was said to you by any one, and by whom ? A. The prisoner at the bar, when I said I was a magi- strate, said, " Where is your authority ?" Q. Probably you would not have it about you ? A. No. I told him there must be plenty of people in the crowd there who knew I was a magistrate. . Did you look about to endeavour to recognise any person who was acquainted with you ? A. I did. Q. Were you successful ? A. No. Q. Did he say any thing to you upon your observing that this was an improper paper to remain in that position ? A' He questioned me about my authority, which I had nothing to shew for j and he told me, that before he would permit me to take down that paper, he would part with the last drop of his blood. Q. Was that whilst or after he had hustled you from the pavement ? A. It was after I had been twice hustled from the pave- ment. Q. Did you, after you were hustled from the pavement in the way you have just now described, make another ef- fort to get to the watch-box ? VOL. I. K 146 A. I did. Q. Was that more successful than the first ? A- No, not more. Q. Why not? A. I had not personally strength enough. Q. State to us what was done by him or by others ? A. I was seized by him in the same way, or rather in another way, he clasped 'both my arms within his, and hustled me off the pavement. Q. Did he come behind you ? A. Before me, I think. Q. Were you prevented the second time in the way you have mentioned by the intervention of the prisoner and others ? A. I was. Q. Did you make any other effort ? A. No. Q. When was it that he used the words which you have mentioned ? A. After the second attempt. Q. Would you have taken down that paper but for the prevention or interruption which you received from the pri- soner, and the other persons concerned with him f A. Most unquestionably. Q. Did you leave that spot in consequence of finding it impracticable for you to do so ? A. I did. Q. Do you remember any other conversation, or any thing more that was said by the prisoner, or by any other person, at that time in that party ? A. No, I do not. Q. Did you ever see him afterwards that you recollect ? A. I have seen him twice since. Q. Perhaps you mean at Stirling ? A. Yes. Q. Since his confinement ? A. Yes. Q. Did you see him before that, or that day ? A. I never saw him before or since. 147 Q. Have you any doubt of that being the person of whom you have been speaking ? A. Not the least. Q. Did I understand you rightly, when I understood you to say, that that person asked you to shew your authority as a magistrate, or was it another person in the crowd ? A. It was this person, (Hardie.) Q. That was in reply to your assertion that you were a magistrate ? A. Yes. Q. Did you read the whole of that address ? A. I did not. Q. You say, that a certain portion of that address was read aloud by the person who was reading at the time you approached the crowd ? A. Yes. Q. You read a certain part of it yourself, because you followed the man who was reading ? A. I did. Q. Did you see in the course of that day any similar ad- dress ? A. In the course of two or three minutes afterwards I saw another. Q. Was that also pasted up against a wall ? A. It was pasted up against a well a pump-well. Q. What height was it up from the ground f A. About four or five feet. Q. Did you take that down ? A. I did. Q. Did you read it before you did so, or afterwards ? A. I read it afterwards. Q. You are quite sure that what you took down from the well you afterwards read ? A. Yes. Q. Have you that document about you now ? A. I have. Q. I do not call for it at present, that you have had it in your possesion ever since ? A. Ever since. 148 Q. Do you believe that the address, part of which you have read in the presence and hearing of the prisoner, is a copy of that address that you have about you now ? A. I do. Q. Does your recollection furnish you so far as to ena- ble you to tell us what part of the address was read in his hearing ? A It was the address to the soldiers. Q. You mean that part of the address? A. That part of the radical address. Q. That part which begins by the word " Soldiers ?" A It is just a paragraph to the soldiers altogether. Q. Do you remember hearing that paragraph read by the person in the presence and hearing of that man at the bar ? A. Yes, I do. Lord President. Both these copies contained that para- graph ? A. Both. Mr Serjeant Hullock. Then of whatever nature or de- scription that paragraph may happen to be, of that para- graph he must have been aware, because he heard it read I A. Perfectly. Q. Produce it if you please, and let us see whether it contains that passage. ( The witness produced it.) Q. Just state to us the part of the address which you can, upon your memory, and upon your oath, state was read by the person to whom you allude, at the time you went up to that party of which that man was one. A. " Soldiers ! shall you, countrymen, bound by the sa- cred obligation of an oath to defend your country and your King from enemies, whether foreign or domestic, plunge your bayonets into the bosoms of fathers and brothers, and at once sacrifice at the shrine of military despotism to the unrelenting orders of a cruel faction those feelings which you hold in common with the rest of mankind? Soldiers ! turn your eyes toward Spain, and there behold the happy effects resulting from the union of soldiers and citizens. 149 Look to that quarter, and there behold the yoke of hated despotism broke by the unanimous wish of the people and the soldiery, happily accomplished without bloodshed : and shall you, who taught those soldiers to fight the battles of liberty, refuse to fight those of your own country ? forbid it, Heaven ! Come forward, then, at once, and free your country and your King from the power of those that have held them too, too long in thraldom." Q. Did you stop him at that time ? A. I pressed through the crowd. Q. Was the stopping, at whatever period it was, the re- sult of your exertion to get towards the place to take it down ? A. It was. Q. Are you quite sure that that portion of the address against the watch-box was read in the way, and at the time you have mentioned ? A. It was. Q. Is this the address which you got from the well ? A. It is. Q. When did this fracture take place ? A. Some person had attempted, I imagine, to tear it off before. Q. This was all you got from the place ? A. Yes. Lord President. -It appeared to be a little torn when you saw it? A. One fragment was torn off the lower corner. Mr Serjeant Hullock. Do you remember reading the date of the other address against the watch-box ? A. No, I cannot say that I did. Q. Did you see the title of that which was against the watch-box ? A. Yes, I did. Q. Was it the same title as that ? A. Yes. Q. And the paragraph you have read was the same pa- ragraph as was contained in the other, and which was read at this time amongst those persons ? 150 A. It was. Q. You reside at Glasgow ? A. I reside at Glasgow. Q. You resided there both before and after this date ? A. I did. Q. Was there any difference in the appearance of the place on the Saturday, the day before this address was seen by you, and on the Monday, the day after? A. A very great deal. Q. Have the goodness to describe in what respect ? A. The streets were crowded in a very tumultuous man- ner. Q. When? A. On the Monday. Q. Through the whole of Monday ? A. Through the whole of Monday. Q. Did you happen to be at Glasgow on the Tuesday? A. I was at Glasgow on the Tuesday. Q. Did the same crowded appearance continue during the whole of Tuesday ? A. So much as I saw of it, but I went to the barracks and remained there all day. Q. Did you see it afterwards ? A. On Tuesday night, after my return. Q. And on Wednesday ? A. And on Wednesday. Q. Describe the state the streets were in at that time- were they still crowded ? A. Yes, very much crowded, and bands of men walking in procession through them. Q. Describe the sort of crowd, and the sort of proces- sions, which you are referring to ? A. Men walking in military array. Q. Were they soldiers ? A. No working people. Q. What do you mean by military array ? A. Keeping step, and walking in regular rows. Q. Were they in ranks ? A. In ranks. 151 Q. Of what number might any one of those bodies, who were marching in military array, be composed ? A. One of them about sixty, as near as I could guess ? Q. About sixty individuals ? A. Sixty individuals. <2. Were there several of that description of party ? A. Several. Q. Were the crowds which you have mentioned, and the persons marching in military array, of the class of working people, or of what description ? A. Working people. Q. Do you know how long that state and condition of things remained at Glasgow ? A. It continued about the whole of that week. Q. Did the streets exhibit in any part of the preceding week appearances of that sort ? A. No. Q. Then, was the first day upon which you observed these marchings and these crowds subsequently to the time that you saw this address posted up upon the watch-box? A, It was. Q. Did you before the morning of the 2d of April see any address of that sort in any place, either posted up or any where else ? A. Yes. Q. Before the Sunday morning ? A. No. I beg your .pardon, I thought you said after. Q. You say that during the former week no appearances of this sort were exhibited in the streets of Glasgow ? A. No. Q. Was the first address that you saw the address that you saw when that man was there ? A. It was. Q. Had you before that time then seen any address ot that sort any where ? A. No. Q. You say that the streets continued in that state du- ring the remaining part of that week ? A Yes; not nearly so much so after the Wednesday. 152 Q. Were you in Glasgow on the Wednesday ? A. I was. Q. Did you hear of the skirmish on Bonnymuir in the course of that day ? A. I cannot say whether it was that day. Q. A rumour of that sort did reach your ears? A. It did. Q. But you do not know whether it was on the Wednes- day or the Thursday, do you ? A. No. Q. During the remainder of the week these crowds ra- ther diminished ? A. They did. Q. I ask you whether any other person besides Andrew Hardie was active in preventing your taking it down, or appeared to be active in taking care of that paper ? A. There was. Q. How many of them might there be ? A. Four or five besides himself. Q. Have the goodness to state to the Court and the Ju- ry, in what way they exerted themselves to prevent your get- ting to the watch-box to take it down ? A. In pushing in between me and the box. Q. Did they appear to do that on purpose to prevent your getting to the box ? A. They did. Q. Did any other person say any thing except Hardie ? A. I do not recollect, he was the most prominent indi- vidual of the party. Q. Did he, in your judgment, appear to take the most active share in the opposition to you ? A. He did. Cross-examined by Mr Jeffrey. Q. You are a justice of the peace for Lanarkshire, I un- derstand ? A. I am. Q. Not a magistrate of the city of Glasgow i 153 A. Not of the city of Glasgow. Q. You said you were a magistrate in general terms to the persons who obstructed you ? A. I did. Q. Does it consist with your knowledge, that in Glas- gow the word magistrate is generally applied to the city magistrates ? A. It does. Q. Do they wear any visible badge in general ? A. They do. Q. A gold chain in general, do not they ? A. They do. Q. Do you recollect using any angry or reproachful ex- pressions to the party at the time, other than those you have mentioned ? A. No, I do not. Q. How long time might there be this little squabble about the watch-box ? A. Two or three minutes f Q. Did you observe, on leaving the party, whether the reading was resumed again ? A. I did not, I cannot answer that. Lord President. Andrew Hardie, have you any questions to ask him I suggest them to your counsel if you have. Prisoner. No, my Lord. JOHN STIRLING, Surgeon, residing in High-Street in Glas- gow sworn. Examined by Mr Drummond. Q. Do you know the prisoner at the bar ? A. Yes, I have seen him before. Q. Did you see him upon the morning of Sunday, the 2d of April, in Duke Street, Glasgow ? A. Yes. Q. What was he doing at the time you saw him ? A. At the time that I first observed, I believe Mr Har- 154 die the magistrate was in the act of taking down one of those papers, and the man at the bar stepped forward and prevented him from doing so. Q. What paper ? A. An address to the inhabitants of Great Britain and Ireland. Q. Mr Hardie attempted to take the paper himself? A. Mr Hardie attempted to take it down. It was past- ed on the police-box; and he first of all attempted to snatch it down with his hand, and did not succeed; and afterwards tried to take it down with the point of his umbrella, and he was prevented by the prisoner. Q. What did the prisoner do ? A. He caught hold of him by the waist, and pushed him off the pavement. Q. Were there other people round at the time assisting the prisoner ? A. Yes ; there might be from twenty to thirty more. Q. And did they assist the prisoner in preventing Mr Hardie taking it down. A. No ; none of them assisted him, some of them ap- peared friendly. Q. Did any of them assist the prisoner in pushing back Mr Hardie from the paper ? A. No, none of them. Q. Did they assist Mr Hardie then ? A. No, they did not either. Q. Some appeared friendly ? A. Yes, a number appeared friendly to the prisoner. One spoke on his behalf. Q. What did he say ? A. I do not recollect exactly the expression which the individual used. Q. What was the nature of it, as far as you recollect ? A. I suppose, that there was no ill contained in the pa- per. Q. Do you remember what Mr Hardie said to that ? A. He told the prisoner that it was a treasonable paper, and ou;ht to be taken down. 155 Q. Was that before the prisoner shoved him off, or af- terwards ? A. That was after. Q. Then Mr Hardie had come back again ? A. No ; he was not pushed any distance off, he made a second attempt to take it down, and the prisoner said he would not allow him to take it down, he dared him to take it down. Q. Do you remember what the prisoner said particular- ly? A. He wanted to know for what reason he wanted it down, and what authority he had for doing it : and Mr Hardie replied to that question, that he was a magistrate; and that the paper contained seditious matter. Q. Did you see the prisoner after that? A. Yes, I saw him frequently on the Monday ; and I be- lieve I saw him on the Sunday afternoon, and on the Tues- day morning; I saw him frequently on the Monday. Q. And on the Sunday afternoon, and Tuesday morn- ing? A. Yes. Q. Where did you see him upon the Monday ? A. I saw him at the east end of Rotten-row Street, Glas- gow at the head of Havanah Street at the corner of Duke Street, on both sides, and at several other places. Q. Were there people with him at those times ? A. Yes. Q. What were they doing? A, They appeared to be quite idle, talking to one an- other. Q. Was there a person of the name of Anderson there the first time you saw him ? A. Yes; a Mr James Anderson, an Excise officer. Q. You saw him here to-day ? A. I did. Q. He was at the watch-box at the time Mr Hardie was endeavouring to get the paper down ? A. Yes. Q. You saw him there ? 156 A. Yes ; I saw him there at the time) and I saw him im- mediately before he went there. Q. Did you observe any thing pass between Mr An- derson and the prisoner at the bar ? A. Yes ; I observed the prisoner told Mr Anderson that he knew his principles well, and would mark him after- wards. Q. What led to that observation ? Had Anderson said any thing to him before ? or what intercourse was there pre- viously between them ? A. Mr Hardie had just gone away then, and I was fol- lowing him, and I heard the prisoner speaking rather loud with Mr Anderson, and I heard that expression of the pri- soner, and he accused me in the same manner that he knew my principles likewise, and that he had brought Mr Hardie there for the purpose of taking it down. Lord President. He applied that to you too ? A. He applied that to me after returning. Mr Drummond. From the observation you had, did you consider that Mr Hardie was prevented taking down the paper ? A. Yes ; I certainly considered he was prevented taking it down. Lord President. -Have you any questions to suggest to your Counsel ? Prisoner. No, my lord. HUGH M'PnuNN, Clerk to G. and R. Dennistoun, and Co. merchants, Glasgow, residing in Duke Street in Glasgow sworn. Examined by Mr Hope. Q. Where do you live. A. I live at the corner of Duke Street, in the High Street. Q. In what town ? A. In Glasgow. 157 Q. Were you in Glasgow in the beginning of last April, upon the first and second of April ? A. I was. Q. Had you occasion to be out in the street in the morn- ing of the second of April, on the Sunday ? A. I was out in the morning. Q. Was that upon the Sunday ? A. Yes ; upon Sunday morning. The second of April was Sunday. Q. Are you acquainted with Mr Hardie, one of the Jus- tices of the Peace of the county of Lanark ? A. I am. Q. Did you see him upon that Sunday morning ? A. I did Q. In Duke Street ? A. In Duke Street. Q. Where was he when you saw him ? A. He was exactly opposite to my window. I was look- ing over the window, and I saw Mr Hardie. Q. Were there other people upon the street, at the time ? A. There were. Q. What were they doing ? A. They were reading a paper that was upon a sentry box. Q. How many people might there be? A. From a dozen and a half to two dozen. I could not say exactly. Q. Was any person reading it to the others aloud, or did they appear all to be reading it together ? A. There was one man reading it aloud at one time. Q. Did you go towards the spot f did you join this crowd? A. Not at the moment. Q. Did you shortly afterwards ? A. I did in a few minutes afterwards. Q. Did you see the prisoner at the bar there ? A. I did. Q. Did you see Mr Hardie, the magistrate, attempt to do any thing at that time, and what I 158 A. He attempted to take down the paper. Q. What followed ? A. There was a person took Mr Hardie by the breast, and would not allow him to take it down. Q. Do you know who that person was ? A. Yes. Q. Who was it ? A. The prisoner at the bar. He took him by the breast, and would not allow him to take it down, and offered to strike him. Q. Did you hear any observations made either by Mr Hardie the magistrate, or by the prisoner, and what were they ? A. I did not; I was then looking over the window. Q. Did you go down to the street after that ? A. I did. Q, Immediately after you saw that ? A. Mr Hardie was away before I went out. Q. When you went down, what took place then ? A. There were a number of people there, and Mr Har- die returned in a few minutes after that. Q. In a few minutes ? A. Perhaps in a quarter of an hour, or half an hour; I cannot say exactly the time. Q. What took place then ? A. Nothing at all ; the prisoner at the bar was away be- fore that. Q. After you left your house, and went down to this crowd, did you hear any observations made by the prisoner at the bar ? A. The prisoner was away when I went down. Lord President. Andrew Hardie, have you any ques- tions to suggest ? Prisoner* No, my lord. 159 ARCHIBALD BUCHANNAN, change-keeper of, and residing at Castlecarry Bridge, parish of Falkirk sworn. Examined by tlie Lord Advocate. Q. You are a change-keeper at Castlecarry Bridge, are not you ? A. Yes. Q. Where is that situated ? A. On the banks of the great canal. Q. Upon the road from Glasgow to Falkirk, is it ? A. Yes. Q. What side of the canal is your house situate upon ? A. The north side. Q. Do you remember any persons coming to your house on a Wednesday, in the beginning of April, in the morn- ing ? A. Yes. Q. At what time ? A. Half-past six o'clock. Q. Did you see where they came from ? A. I think they came across the bridge. Q. Where did you see them first. A. They came to the door. Q. Were you in the house at the time ? A. Yes. Q. Did any of them knock at the door? A. They tapped gently at the door. Q. Did you answer it? A. I told them to come in ; I did not rise off my seat. Q. How many came in did you see ? A. I could not say particularly ; I never counted them. Q. About how many ? A. I dare say there would be about twenty-four, or there- by ; I could not say particularly. Q. Had they arms, or any thing with them ? A. They had long sticks. 160 Q. Any muskets ? A. Some had ; but I could not say particularly. Q. Had they all some weapon or other ? A. Yes. Q. Were they merely long sticks, or had they pikes at the end of them ? A. They had iron in the end of them. Q. What did they ask for, or what did they say about themselves ? A. They asked if we had any porter and bread, which they got. Q. How much did they get ? A. A dozen of porter, and a dozen of bread. Q. Is that loaves you mean ? A. Twopenny loaves. Q. How long were they at your house altogether. A. Much about half an hour, or thereabouts. I could not say particularly the time. Q. Did any of them ask what was to pay ? A. Yes ; one little man came and asked what was to pay. Q. Should you know that man again ? A. I could not say particularly. Q. Look and see if you see him among those men ? A. This was him. (Baird.) Q. What did you tell him ? A. I said eight shillings. Q. Did they give it you ? A. They gave me 7s. 6d. Q. Did he give you that at first, or did he propose that you should take any thing else instead ? A. No, nothing. He gave me 7s. 6d. first. Q. Did he talk any thing about a note. A. No ; I do not recollect taking it. Q. Had this man the money himself? A. Yes ; he gave me the money out of his pocket. Q. He did not get it from any of his companions ? A. Not that I know of. Q. Did they ask any receipt for this ? 11 161 A. Yes. Q. Did you give it ? A. Yes. Q. Should you know it again ? A. Yes. Q. Read that, (handing a paper to the witness;) is this the paper that you gave ? A. Yes, I think it is, with my own name to it, and in my own hand writing. Q. Who did you give this to ? A. To the man that I got the money from. Q. To that man next you ? (Baird.) A Yes. Q. Read it yourself, and see what you meant by it ? A. " The party called, and paid for porter and bread, 7s. 6d. by cash ; signed,. Archd. Buchanan" Q. Is that a receipt of your own making out, or were you desired to make it out in those terms ? A. I was desired to make it out so. Q. By the same man ? A. Yes. Q. The same man dictated it to you ? A. Yes. Q. Was that the only receipt that was made out ? A. Yes. Q. Did not you make out a receipt yourself? A. I was going to make out one. Q. Why were not you allowed ? A. It was not in the way he wanted it. Q. Was it written, that he saw it ? A. I just began two or three words. Q. What words had you written ? A. I think it was " Received from." Q. And he said that would not do, and dictated that ? A. Yes. Q. Did they go away after this ? A. Yes. Q. Did you observe which way they went, or whether they went altogether, or what " became of them ? w VOL. I. L 162 A. I cannot say particularly, for I did not go to the door with them. Q. Did you not look after what way they went at all? A. No I just went to the window. Q. Did you see through the window ? A. No. Q. Could you say whether they went towards Falkirk or towards Glasgow ? A. They did not cross the bridge. Q. Did you know any of the party besides that man that you mentioned ? A. No, I could not say. Q. Look at them again, and tell me whether you saw any of them before. A. I cannot say. Q. You do not mean to say you have examined those men ? A. No, I could not say. Lord President. Andrew Hardie, have you any questions to put to the witness ? Prisoner* No, my Lord. ALEXANDER ROBERTSON, of and residing at Damhead, in the Parish of Falkirk sworn. Examined by Mr Serjeant Hullock. Q. You live at Damhead, I understand ? A. Yes. Q. In the parish of Falkirk ? A. Yes. Q. Do you remember any thing happening on the morn- ing of the 5th of April last, when you opene dyour win- dow-shutters ? A. Yes. Q. About what time might that be ? /. I cannot say the exact time, but I think it was about eight o'clock. Q. Upon that occasion did you see any number of men ? 163 A. Yes, I see'd people walking in military array along the north bank of the Great Canal, going to the eastward. Q. How far might that be from your house ? A. It might be about four hundred yards. Q. Was it near enough to enable you to form an opinion whether they had any thing with them arms or long sticks ? A. Yes; they had long sticks, in a slanting direction over their shoulders. Q. What sort of sticks were they ? A. I could not exactly say; they were appearing to be what you call those pikes. Q,. They had like bayonets probably at the ends of them ? A. Yes. Q. Had they all of them pikes ? A. I could not say exactly, but the greater part had. Q. Did they march in order ? A. Yes, they were marching two men deep, according to the best of my judgment. Q. Did they preserve any step ? A. Yes, I think they were keeping step. Q. You cannot say exactly the number, but you can give us a guess ? A. I think about four-and-thirty. Lord President. Did you see any guns ? A. Yes, after they turned to go up to Bonnymuir, I saw they were hanging on their arms. Mr Serjeant ffuttock.Did you pursue them with your eye? A. No ; they went out of my sight by the wood there. Q. Did they return at any time afterwards ? A. Yes, they did at least I was told so. I did not see them. Q. Did you see any portion of those men, or any men of a similar description, in the course of the morning after- wards ? A. Yes. Q. How soon after ? A. In about an hour afterwards, or perhaps less. 164 Q. Where did you see them the second time ? A* Marching along the drove-road, going up to Bonny- muir. Q. Is that a piece of open ground in your neighbour- hood ? A. It is what we call the drove-road there, where they drove the cattle from the north of Scotland to the south of England. Q. You saw them marching towards Bonnymuir ? A. Yes. Q. Did you see to what place they did go ? A. They went up to the top of the hill. Q. You saw them do that ? A. Yes. Q. Had you any opportunity, the second time, of ob - serving whether any of .those men h^d guns or muskets ? A. Yes, that was the time I saw it most, be cause I was near it. Q. Were you so near as to enable you to see what they had ? A. I saw a few had guns. Q. And what had the others ? A. Those long sticks. Q. With glittering iron at the ends of them ? A. Yes. Q. Did the sun shine upon them the last time ? A. No, they were close to the edge of the wood. Q. Were you enabled to say, from what you saw of them the last time, whether they were the same party you had seen in the morning on opening your window-shutters ? A. They appeared to me the same in number. Q. They went up towards the Bonnymuir ? A. Yes. Q. In what way were they carrying their arms and their guns the last time : A. They were going in a more careless manner, in a straggling posture, not keeping step so well as formerly. Q. Did you trace them with your eye up to the Muir ? A. Yes. 165 Q. What did you observe them do when they got there ? A. They went up to the top of the hill, and in a manner made a halt there. Q. That is, they halted there ? A. Yes, some stood still, and some sat down. Q. Did they continue in that situation any length of time? A. Yes, they stood there for about, may be, half an hour. Q. At this time were you in sight of them ? A. Oh yes. Q. Did you continue to observe them during the time you are speaking of? A* I think so it might be about that time that I was keeping my eye upon them. Q. You were keeping your eye on them, whether it was twenty minutes or half an hour ? A. Yes, thereabouts. Q. Did any thing take place, and when, and what ? A. I was returning homeward, going to take my break- fast, when I came over the top of the hill, and I saw a troop of cavalry coming at full speed; and I stood still at the top of the hill, and they came through the aqueduct, to see whether they would go eastward or forward. Q. A troop of cavalry coming at full speed, you say you saw ? A. Yes. Q. How far were you off the place at which these men were assembled at that time upon the muir ? A. I could not exactly say I might be, perhaps, nigh- hand between a quarter and half a mile, to the best of my judgment. Q. You saw a skirmish, did you not, between the cavalry and these men ? A. Yes. Q. You say that your attention was attracted by cavalry ? A. Yes. Q. Did you, upon seeing the cavalry, turn your eyes to- wards the men upon the muir ? A. Yes, 166 Q. Did they continue stationary upon the rauir, sitting and standing, or do any thing ? A. They stood still in the same position, till the cavalry came through the aqueduct, and went up the drove-road, the same way that they did till the cavalry got to the edge of the inuir. Q. Were the cavalry in sight of the persons above ? A. Yes, they certainly saw them, because they were placed upon a height, where they had a commanding view for three or four miles. Q. Then they commanded a view of the cavalry ? A. Yes. Q. Upon the cavalry getting to the edge of the muir, did the persons upon the muir do any thing ? A. I went up to the height, to see a chase, or something of thatkind, and they were waving their hats round their heads. Q. Who were waving their hats round their heads ? A The people on the top of the muir. Q. Had those persons who were sitting on the ground risen up at the time those hats were waved, or did they get up on the waving of the hats ? A. They were all standing, pretty nigh-hand to one an- other. Q. Was there any shouting from any quarter ? A. I did not hear none, but I saw the hats going round. Q. Did you see more than one hat waved ? A. I saw just their hats in their hands; I could not say the number, but a few. Q. Upon their hats being waved in the way that you have mentioned, what took place ? did they move from the spot ? A. The cavalry came up, and the men ran down the hollow ; and they clapped themselves at the back of a dike. Q. They ran down the hill ? A. Yes. Q., Was that nearer to you ? A. Coming to meet the cavalry coming up. Q. Did they come nearer towards you r 167 A. No ; they were running to the northward, and 1 was to the .west. Q. Did they all run down the hill, or the greater part of them ? A. I could not say the greater part of them. Q. Did they run down to a dike ? A. Yes. Q. What did they do then ? A. They all placed themselves along the back of it. Q. Do you mean that they took up a position along the back of it ? A. Yes. Q. Were they all in a heap, or did they extend them- selves in line I A. The greater part, to the best of my judgment, I thought were in line ? Q. About what height might that dike be ? A. Four feet nine. Q. A short man, therefore, would hardly be visible over the dike ? A. They were in a looting posture. Q. While they were in that posture, what part of them was visible over the dike ? A. None at all. Q. Was any thing done by them, or by any of them, after they had attained the dike, and assumed that posture ? A. The cavalry came up, and they commenced firing upon them in an irregular manner. Q. Who do you mean by they commenced firing ? A. Those fellows who had taken up the position in line behind the dike. Q. They began firing at the cavalry ? A. Yes. Q. How far distant from the dike were the cavalry, in your judgment, when the first shot was fired by those men ? A. I could not exactly say, but to the best of my judg- ment, I think, between eighty and an hundred yards. Q. Were you near enough to see whether any muskets were levelled over the dike ? 168 A. Yes, I was just about six hundred yards distant. Q. Did you observe that ? A. Yes. Q. What did you see across ? A. I saw the guns over the dike, when they were fired. Q. Were those guns which you so saw levelled, the guns fired at the cavalry ? A. Yes. Q. How many shots were fired, do you think ? A. I could not exactly say, because they were in an ir- regular manner first one shot, and then two, in an irregu- lar manner. Q. Were there more than two ? A. Yes, there were more than two, but first one and then two. Q. A sort of running fire ? A. Just in an irregular manner. Q. Did the cavalry, notwithstanding this firing, continue to near the dike ? A. Yes. Q. Before the running fire of which you have been speak- ing commenced, had there been a single shot fired by any one of the cavalry ? A. I could not exactly say when they fired to the best of my judgment, they came through a small slap at the end of the dike before they fired. Q. Did the cavalry fire before they got through that slap? A. I could not say. Q. You say that the guns were levelled across the dike ? A. Yes. Q. And some of those guns were fired ? A. Yes. Q. Before those guns were fired, do you know whether any pistol-shot, or any other shot, had been fired by any of the soldiers ? A. I am certain not. Q. Am I to understand you, then, that no pistol, or shot from any instrument, either carabine, musket, or pistol, was 169 fired by the soldiers, till after the firing from the dike, in the manner you have stated to us ? A. I am certain of that. Q. The number of shots you do not affect to tell us ? -L I cannot say. Q. You saw, you say, the cavalry get through a slap ? A. Yes. Q. Do you know which of them went over first ? A, No, I could not say. Q. After that, you saw firing by the cavalry ? A, Yes; I could see nothing for about a minute, for a cloud of smoke ; and there was a pistol shot then I cannot say who was firing then. Q. After that, did you see the whole of it? A. Yes, it did not last long in the course of about a minute, they were all dispersed, running along the muir, and taken prisoners. Q. All the men \ A. Yes. Q. Bonny muir is in the parish of Falkirk, is it not I A. Yes. Q. And that is in the county of Stirling, we understand ? A. Yes. Q. Was there any person who had been wounded on either side, taken down to your house on that day ? A. Yes. Q. Who was it, do you know ? A. I cannot say. Q. Where was he carried to ? A. He was carried down to my house. Q. Was he lodged in your house that night ? A* The lieutenant gave orders for him to be taken away, and asked me if I would allow him to be taken to my house, and I said yes, and he was carried away by the crowd. Q. Was he much wounded ? A. I did not see. Q. Was he there at night ? A. Yes. 170 Q. Did you visit him in the morning ? A. Yes, I went into the apartment, and one of my friends went in in the morning, and they observed one of the win- dows forced up, and he was missing. Q That person you did not know, you say ? A. No, I did not. Cross-examined by Mr Jeffrey. Q. The cavalry were going full speed when you saw them first? A* Yes, at a canter. Q. Had they their swords drawn ? A. I could not see. Q. Had they their swords drawn when they went to the edge of the muir f A. I could not distinguish that, because I was casting my eye on one and the other. Q. They went on without check or halt till they came near this dike ? A. Yes. Q. And you think they did not fire till after some shots had been fired across the dike ? A. Yes, I am certain of that, that they did not fire till a number of shots were fired at them. Lord President. Andrew Hardie, have you any ques- tions to put to this witness ? Prisoner. No, JAMES RUSSEL, residing at Longcroft, in the parish of Denny sworn. Examined by Mr Drummond. Q. Are you proprietor of Longcroft ? A. Yes. Q. And you live there ? A. Yes. 171 Q. You lived there in the month of April last r A. Yes. Q. Longcroft is in the parish of Denny ? A. Yes. Q. Is it near the public road : A. Yes. Q. How far is it from it ? A. About a gun-shot I think. Q. Do you remember, in the beginning of April, one morning a party of men coming to your house \ A. Yes. Q. Do you remember what day of April that was ? A. It was the 5th day of April Q. About what time in the morning ': A. It was between seven and nine. Q. A party of men came to your house then ? A. Yes. Q. What did they do : A. I did not hear of their coming till I was informed by some bairns that were about the door. They came in, and told me that the radicals, as they called them, were at the end of the house ; and, as I had two guns in the house, I ran and hid one of them, and before I returned from hiding it, one of them bad a gripe of the other one. Q. How many of the men might there be ': w^There was only two came into the house, and one of them took the gun, and the other staid within the door. Q. How many were on the outside, or at the door ? A. After the one returned that took the gun, I looked out and I saw another one ; there might be more, but I did not see them. Q. He took away the gun ': A Yes. Q. Did you say any thing to him : A. I alleged the gun was my property, and it was un- lawful for him to take it ; and he said he would give a re- ceipt for it. Q. What part of the house was the gun in at the time ' A. It was just hanging in the kitchen. 172 Q. Upon the wall ? A. No ; it was on the foreside of a kitchen bed. Q. Did you ever see that gun afterwards ? A. Yes ; in the Castle- Q. In the" Castle here I A. Yes. Q. And you would know it again ? A. Yes. Mr Drummond. There are two witnesses to prove the labels on these boxes ; but I presume, if the labels are broke in the Jury's presence, we can call the men afterwards. Lord President. I cannot tell what the Jury may require in a case of this kind. Mr Drummond. It is very easy to remove this witness, and call him again. JAMES MURRAY, armourer in Stirling Castle, sworn. Examined by Mr Drummond. Q. Look at the labels of those boxes, and see whether they are as you sealed them ? A. That is my signature. Q. Look at each boxf A. Yes ; I saw them both sealed up, and my name is upon the labels. Q. You are the armourer of the Castle ? A. Yes. Q. And you know that these things have been kept there ever since they were brought to you ? A. Yes. Q. When did you see them first? A. When they were delivered into Stirling Castle. Q. When was that ? A. It was about the beginning of April. Q. Who delivered them into the castle ? A. They were delivered in charge to the ordnance store- keeper. 173 Q. Mr Benson ? A. Yes. Q. You know that those boxes contain the same things that were delivered at that time to Mr Benson ? A. Yes ; the very same. Cross-examined by Mr Jeffrey. Q. How do you know that f A. Because I examined them. Q. In whose keeping were they from the time you saw them first put in those boxes ? A. In the custody of the keeper of the ordnance stores in my charge. Q. In what room or place ? A. In the room below the staircase. Q. Who had the key ? A. I had. Q. Were you the only person who had it ? A. Yes. Q. Did you ever part with the key while you had it ? A. No. Q. Except you went yourself in ? A. Except I went myself in. Lord President. Andrew Hardie, have you any ques- tion to ask of this witness ? Prisoner. No. Mr Serjeant Hullock. Were you present when any of those arms were drawn ? A. No ; but John Murray, my son, drew them. Q. You saw the arms deposited in those chests ? A. Yes Q. And they have been under your care ever since ? A. Ever since. 174 JOHN BENSON, ordinance store-keeper in Stirling Castl sworn. Examined by Mr Drummond. Q. You are ordnance store-keeper in Stirling Castle ? A. Yes. Q. Did you see these boxes sealed up ? A Yes. Q. Look at them, and see whether they are in the same state ? A. Yes ; this is my signature here. Q. And on the other box ? A. And on the other box too. Mr Jeffrey. Do you know those seals ? A. That is my seal. Mr Serjeant Hullock. When did you first see those things ? A. Some time in April. Q. Did you make no memorandum of the day ? A. No, I do not recollect the day j I thought 1 had no- thing to do with them ; they were put into my charge ; if I had got them in my books, I could have told you more about them. Q. Have you got them in your books ? A. No ; they were put into my care for production. Q. Who brought them to you ? A. I think Mr Banks sent them there. JAMES RUSSELL called again. Examined by Mr Drummond. Q. Be so good as look into this box, and see if you can find in it the gun which you have been speaking about, 175 which was taken away from your house in the month of April. A. This is the gun, (producing- it.) Q. That is the gun that was taken away from your house in the beginning of April ? A. Yes. Q. The gun that was hanging up upon the front of the bed? A. Yes. Q. You have seen that gun since it was taken away from your house, in the Castle f A. Yes. Q. Is that the gun that was shewn to you in the Castle ? A. Yes. Lord President. Andrew Hardie, have you any ques- tions. Prisoner.-* No, my Lord. WILLIAM GRINDLAY, residing at Bonnymill sworn. Examined by Mr Hope. Q. Where do you live ? A. I live at Bonnymill. Q. In the parish of Falkirk ? A. Yes. Q. Do you recollect seeing any party of men, early one morning in April, near your house ? A. Yes, upon the 5th of April. Q. At what hour in the morning f A. Between eight and nine, I think. Q. What number of men did you see ? A. About twenty, I think. Q. Were they going carelessly along, or did they appear to be marching ? A. They were rather in a marching order, 1 think. Q. Were they carrying any thing in their hands ? 176 A. Most of them were carrying pikes, I think.' Q. Had any of them any other weapons in their hands ? A. I observed one with a gun. Q. In what direction were those men -going when you saw them ? A. Going east the canal bank. Q. In what direction is that towards Falkirk ? A. Yes. Q. And Camelon ? A. Yes. Q. Did you lose sight of them ? A. Yes, they went out of my sight. Q. Did you see that party, or a similar party, again shortly afterwards ? A. They did return, but I did not see them upon their return. Q. Did you see any thing take place at a'distance some time afterwards, upon a height upon Bonnymuir ? A. Yes, I see'd the smoke of the guns. Q. And you saw some cavalry ? A. Yes. Q. Pursuing a parcel of people ? A. Yes. Q. After those men passed your house, did you miss any thing that you had had about your door ? A. Yes, I was informed Q. I ask you if you missed any thing ? A. I did not miss it till I was informed by some of the family. Q. Did you then miss something ? A. Yes. Q. What was that ? A. A pitchfork. Q. Did you ever see that pitchfork again ? A. Yes, I saw the horsemen have it when they returned back. Q. Were those horsemen bringing any men along with them on foot ? 6 177 A. Yes. Q. Was that the party which you had seen pass your house before ? A. I could not be positive ; I got but a slight look at them. Q. Did you believe them to be the same party ? A. Yes, I think they were. Q. And one of the horsemen had then that pitchfork ? A Yes, one of the Yeomanry. Q. See if you can find the pitchfork in that broad box ? A. This is it, without doubt, (producing it.) Q. Where was that pitchfork the last time that you had seen it, before you saw it in the hands of one of the horse- men? A. It was standing by the house side. Q. Was thaj shortly before ? A. I did not see it that day, but it was standing there sure enough. Q. You did not see it that morning yourself? A. I did not. Lord President. You had left it standing by the side of your house the last time you saw it ? A. Yes. Cross-examined by Mr Jeffrey. Q. When had you seen that pitchfork last before you missed it ? A. I cannot be positive about that ; it might be a day or two. Q. You had not seen it that day ? A. No. Q. Had you seen it the day before ? A. I cannot be positive to that. Q. How do you know that pitchfork to be the same you once had about your house ? A. I know it perfectly well by the make. Q. Is it of your own making ? A. No. VOL. I. M 178 Q. What is there peculiar about the make of it ? Lord President. You are treading on dangerous ground, and you need not put this question ; it leaves it open to a fair argument for you. Mr Jeffrey. I am not afraid of it, my Lord. How do you know that from any other ? A. I know it by that burn upon the shank, and the make of the fork. Lord President. I told you you were treading on dan- gerpus ground : there was a fair argument open to you before, and you have gone on, and he has told you how he knows it to be his own most conclusively. Mr NICOL HUGH BAIRD, residing at Kelvinhead, in the Parish of Kilsyth sworn. % Examined by the Lord Advocate. Q. Where do you live ? A. At Kelvinhead. Q. Where is that f A. Near Kilsyth three miles east of Kilsyth. Q. Are you a private in the Falkirk troop of Stirling- shire Yeomanry ? A. I am. Q. Were you on duty in the month of April last ? A. I was. Q. Where? A. At Falkirk. Q. When did you go upon duty ? A. It was on the Monday, the 3d of April, I think. Q. Did you get leave of absence any day that week ? A. Yes, on Tuesday evening. Q. To go home? A. To go home. Q. And when did you return to join your troop ? A. On the Wednesday morning. Q. Early? 179 A. It was one o'clock. Q. .Did you meet any body in the way ? A. Yes, I did. Q. Tell the Jury what occurred upon the road ? A. I came up with some men on the road, apparently armed. Q. What time in the morning was that ? A. About a quarter or twenty minutes after seven, or perhaps the half hour. Q. You overtook them ? A. Yes. Q. How many ? A. There appeared to me to be a dozen of them, or there- abouts. Q. Did they obstruct your passage, or what happened when you came up to them ? A. They did. Q. They obstructed your passage ? A. They did. Q. In what way ? A. I asked them to let me pass. Q. Did they stop your passage across the road ? A. No ; there was one man came out and obstructed my passage. Q. What did he say to you ? A. He used some rough expression. Q. Do you remember what it was ? A. " I will be damned if I will," or something of that sort. Q. What did you do upon that ? A. I rode off instantly out of sight. Q. Did you draw your pistol ? A. Yes ; they asked my arms, and I drew out my pistol and presented it, and at that moment I rode off from them. Q. Did you say any thing when you presented your pistol ? A. I do not remember exactly whether I said any thing or not. Lord President. You presented your pistol at them ? 180 A. Yes. Lord Advocate. Which way did you go ? A. To Kilsyth. Q. You turned back then ? A. Yes. Q. What for ? A. To get the troops to apprehend them, as I understood them to be rebels. Q. How far were you from Kilsyth at this time ? A. I was four miles and a half. Q. To the eastward ? A. To the eastward. Q. Did you meet any body in your way to Kilsyth ? A. Yes, I met one of the Kilsyth troop going to Stirling with dispatches. Q. Did you tell him what happened to yourself? A. Yes I did, and he turned round with me and rode off to Kilsyth again ; and then I informed Lieutenant Hodgson of the 10th Hussars, and Lieutenant Davidson, that there were people on the road, and that they were advancing east- ward. Q. What happened then ? A. They immediately came off with a party of Hussars and Yeomanry. Q. Were you one of the party ? A. Yes, I was ordered to join them. Q. How many did they consist of? A. Two or three and twenty, I am not correct. Q. Were they partly Yeomanry and partly Hussars ? A. They were nearly half and half. Q. How were they mounted ? A. The Hussars were mounted partly on the Yeomanry horses, and partly on their own. Q. Did any of the Hussars come into Kilsyth before you moved off? A. Yes, they came in immediately after I arrived in Kilsyth. Q. Then this party moved off eastwards ? A. Yes. Q. How far did they go ? 181 A. To Bonnymuir. Q. To Bonnymuir direct ? A. Yes. Q. Did you proceed up the muir ? A. Yes, we did. Q. Did you see any of the people then ? A. We did. Q. Upon the top of the hill were they ? A. Yes, on the top of the hill. Q. And you advanced towards them ? A. We did. Q. What happened then ? did they remain upon the top of the hill, or advance towards you ? A. They advanced towards us, and took up a position behind the wall on Bonnymuir. Q. Did they come down the hill to that position ? A. Part way. Q. Did they cheer ? A. Yes, they did cheer. Q. What number might there be of them ? A. To the best of my recollection, there were about five and thirty or forty there appeared to be. Q. Were they armed at that time ? A. Yes. Q. What with? A. With pikes and guns. Q. After coming down to the wall, what happened then ? A* They fired on us a volley. Q. Did they lay their pieces upon the top of the wall at this time ? A. They did ; they levelled them off the top of the wall. Q. What distance was the cavalry from them at that time ? A. To the best of my memory, thirty yards, or perhaps rather nearer. Q. Did they fire a volley, or a single shot I A. No, there were a number of shots. Q. What number ? A. I cannot say. 182 Q. Were they continued ? A. No, they were nearly off at the same time. Q. Was there any firing by the military at that time ? A. No, there was none before that. Q. Did you advance up to the wall ? A. Yes, we did. Q. What passed then ; did Mr Hodgson communicate with these people. A. Mr Hodgson, of the Hussars, rode up before us, and asked them to surrender, and all that he got was a few more shots. Q. Did you get across this wall ? A. We got over the wall in among them. Q. How did you get over the wall ? A. In at a slap. Q. What happened after that ? did they resist after this ? A. They did, and there was a blunderbuss presented to Lieutenant Hodgson when he got over the slap. Q. Do you know by whom ? A. No, I do not. Q. Did it miss fire, or what happened ? A. I do not know whether it missed fire, or was fired. Q. How did it end ? did these people give way at last ? A. Yes, they ran in all directions ; there were several shots fired before they gave way, and then they ran in all directions, and we pursued and overtook them. Q. And took them prisoners ? A. Yes, we did. Q. And all the people that you took prisoners were ep- gaged in that affair were they ? A. They were. Q. Did you march them to Stirling Castle ? A. No, I accompanied them only to Bonnybridge, and I was sent from there to Edinburgh with dispatches. Q. Look at that man, (Hardiej) and say if you saw him at that battle ? A. Yes, I think I did. Q, Was he active in the business ? 183 A. He is much altered in appearance ; I am rather at a loss. Q. Say whether you know him or not ? A. Yes, I recollect him. Q. Have you seen him since that ? A. Yes, I have. Q. Where? A. In Edinburgh. Q. And did you know him then ? A. Yes, I knew him then. Q. And he was one of the persons that was at that place ? A. Yes. Q. You saw him at Edinburgh ? A. In the Castle the Edinburgh prison. Q. Were any cartridges or ammunition taken from these people ? A. Yes, there was. Q. Did you see any of them searched ? A. Yes, several of them were stripped, and ammunition taken off them. Q. That is to say ball cartridges ? A. Yes, ball cartridges. Q. Several cartridges taken off several of the men ? A. Yes. Q. Was there a bag taken from any of them ? A. Yes. Q. What did it contain ? A. Ammunition, ball cartridges, and powder. Q. Do you know any other of the persons there ? *' A. I know this man here, (Murchie.) Q. Do you know any of the others ? A. The boy, (Johnson.) Q. Any of the others ? A. And this, (Baird.) Q. These were all in the battle, were they ? A. They were, and there is another one at the other end I think, Alexander Hart and Benjamin Moir. Lord President. Andrew Hardie, have you any question I Prisoner. No, my Lord. 184 Lord Advocate.-* Did you mark any of the arms you found ? A. Yes, I did. Q. When? A. At the Castle in Stirling, when I gave in my declara- tion ; I do not know the date. Lord Justice Clerk. Were those arms taken by you ? A. They were. Q. By you individually ? A. No. Lord Advocate. Did you see the short gun taken that was presented at Lieutenant Hodgson ? A. Yes. Q. Should you know that again if you were to see it ? A. Yes, this is it, (producing it.) Q. Is there a label upon it with your name ? A. Yes, my name is upon it. Q. Which of the prisoners was that taken from ? A. I do not know which of them it was. THOMAS COOK, residing in Stirling Castle, Serjeant in 10th Royal Hussars sworn. Examined by Mr Serjeant Hullock. Q. You belong to the 10th Hussars, do not you ? A. Yes. Q. What are you ? a Serjeant ? A. Yes. Q. Did you belong to that corps on the 5th of April last ? A. Yes. Q. Where were you on the night of the 4th of April ? A. I slept in this town. Q. Did you set off with Lieutenant Hodgson early in the morning of the 5th. A. No. Q. When did you leave Stirling ? A. About six o'clock in the morning. 185 Q. To what place were you bound ? A. To Kilsyth. Q. On your journey to Kilsyth, did you meet any persons upon the road of any sort ? A. Yes. Q. Do you know what part of the road it was that you met the persons you are speaking of? A. I never was on the road before, but since I have found out the name of the place. Q. How far might it be from Kilsyth ? A. Seven or eight miles. Q. On this side of Kilsyth ? A. About half way between this place and Kilsyth, as near as I can judge. Q. What description of persons did you meet on the road, and what number ? A. There were either five or six. Q. Men ? A. Yes. Q. What time of the morning might that be do you think ? A. As near as I can guess, about eight o'clock. Q. Were you going fast then ? A. I was going at a walk. Q* Did you meet them I A. Yes, I met them. Q. Were they armed men ? A. Yes. Q. Armed with what species of arms . ? * A. With different descriptions of arms. Q. Mention them. A. There were pikes, pistols, and firelocks, (we will say fowling-pieces,) and one or two saws but which 1 cannot say. Q. There were five or six men ? A. Yes. Q. But, however, they had those arms which you have mentioned ? 186 A Yes. Some had got one arm, and some had got two. One had got a pistol, and another a pistol ; and in that way one man might have two weapons. Q. Had any one man two pikes, or two guns, or two pistols ? A. There was one man had a pistol and a fowling-piece. Q. Was there any other man armed in that way doubly armed ? A. I will not pretend to say that. Q. Should you know any of the persons who met you that morning, if you saw them again ? A. Yes. Q. Look about you. A. I see one man (Hardie,) and this (Murchte.) Q. Any other person amongst the number before you, whom you recollect ? A. No I do not know that I can. There is one man who is not present, or I should know him. Q. There was no other present ? A. To the best of my knowledge. Q. Are you quite sure the two you have pointed at were of the number ? A. Yes. Q. When you came close up to them, what were they doing ? Standing across the road, or on the road ? A. They stood right across the road, in a line. That man (Hardie) was dressing them by the left. Q. Do you mean forming them ? A. They were formed, and he was dressing them in line. Q. When you came up to them, did you, or they, say any thing to each other ? A. Yes. Q. Did you speak first, or they ? A. I spoke first No, I beg your pardon, I was with- in twenty yards of them, and they ordered me to halt. Q' Did you obey them ? A. No. I came up to them, and asked them what they wanted with me; and they gave me a reply, that they were seeking for their rights. 187 Q. They did not all speak together ? A. No. One man said they were seeking for their rights, as honest men ought to do. Q. Was it either of those two persons who said that ? A. I will not pretend to say that. Q. What reply did you make to that ? A. I said I was very sorry for their case I had nothing at all to do with it and 1 hoped they would not molest me. Q. Did they do any thing upon that any of them ? A. They began discoursing of the different things in that way, and they began to say they were seeking for their rights ; and I said I was very sorry for their situation ; and one of them said, " I suppose you are an orderly ; where are your dispatches ?" Q. What did you say to that ? A. I said I had none. I told them exactly the case, how I was left behind at Stirling, and the situation 1 was placed in. Q. Did you state to them why you had been left behind ? A. Yes. Q. What did they say to that ? A. They said it was a bad job for me, because I expect- ed to get punishment for it. Q. You stated to them the cause of your having been left behind ? A, Yes. Q. Did they stop you ? A. They stopped me, and we had discourse together foi five or ten minutes. Q. Did any thing pass about your arms ? A. One wanted to take my arms ; and another said, ** Do not do it ;" another wanted ammunition, and said I had none ; and they left my arms alone, with ray persuading them. Q. What passed between you ? A. I told them I was a friend to their cause. Q. Did you say what trade you had been in formerly ? 188 A. Yes ; I told them I was a weaver, and that I had a wife and family of my own, and I was very sorry for their situation. Q. Did you mention the number of your children ? A. Not to my knowledge. Q. They asked you for your arms ? A. Yes. Q. Did they give you any thing ? A. They asked me if I could read, and I said yes, I could ; and one of the men took out a roll. Q. They asked you if you could read, did they ? A. Yes. Q. You told them you could ? A. Yes. Q. Upon your telling them that you could read, what did any of them do ? A. They took and pulled out a roll of hand-bills out of their pocket. Q. Who did ? A. I cannot say who. One of the party ; and he gave me one of them. Q. What sort of roll ? A. The same as by those books. Q. In this way ? (Producing a roll of paper.) A. Yes. Q. And did he give you one off, in that way ? (Descri- bing it.) A. Yes. Q. What size might the bundle be ? A. I am not much of a judge ; but I suppose there might be from fifty to a hundred. I cannot speak to the number precisely. Q. And so they gave you one ? Did the roll appear to be of the same description of paper as that which they gave to you ? A. It appeared to be so; but I did not see any further than seeing the roll. Q. As far as you could judge, was it so ? 189 A. Yes. Q. Did you put your eyes upon it immediately, to look at it? A. Yes. Q. What were the first words in it ? A. An address to the inhabitants of Great Britain and Ireland, to the best of my knowledge. Q. Did you read the whole of it ? A. Yes, I did. Q. Whilst they were with you ? A. No. After I had left them. Q. Did you read any other part of it besides " An Ad- dress to the Inhabitants of Great Britain and Ireland," at the time they were with you. A. I took notice of the date of it. Q. Give us the date ? A. April the 1st, 1820, was upon it. Q. Do you recollect any other words near that part of it ? A. No. Q. What did you do with that paper ? A. I read it as I went along the road by myself. Q. They permitted you to pass ? A. Yes ; and I read this paper afterwards. Q. After you had told them you were a friend of theirs, they gave you that paper ? A. Yes. Q. How soon did you begin to read it ? Immediately ? A. No ; I called at a public-house on the right-hand side of the road, and had a glass of spirits ; and then I had got out of their shot, about a quarter of a mile, and I read it. Q. You went to Kilsyth ? A. Yes. Q. Who was your commanding-officer there ? A. Lieutenant Davidson's head was out of the window, and I spoke to him. He was the first officer I spoke to. Q. He was at the inn ? A. Yes. I said I had a report to make to him. Q. Was he your superior officer ? 190 A. No. Lieutenant Hodgson was. Q. What did you do with the paper you received from those persons ? A. I gave it to Lieutenant Hodgson, and Lieutenant Da- vidson, and they did not read it, but gave it me again. Q. You were present at the time they had it ? A. Yes. Q. And they returned it to you ? A. Yes. Q. What did you do with it after that ? A. I put it in my pocket, and went with the party to- wards the place. Q. You went with it in your pocket towards Bonny- muir ? A. No ; Lieutenant Hodgson asked me for it before we left the place. Q. Did you give it him ? A. Yes, I did. Q. Are you quite sure that the paper which you received from the person or persons upon the road, in the way that you have mentioned, was the same paper that you gave to Lieutenant Hodgson, before you reached Bonnymuir ? A. Yes. Q. That you are sure of? A. I am quite sure. Q. Had you ever any other paper of that sort I A. No, never in my life. Q. You were in the party that went towards Bonnymuir ? A. Yes. Q. Get yourself as far as Bonnymuir, without giving us any account of what took place in the road to it. Where did you see the people on the muir first ? What were they doing ? A. We came into a kind of a bog on our right, and we turned to the left towards a wood, and we saw these men coming down the hill. Q. Were they walking or running ? A. They were running down. 191 Q. Did you hear any cheering ? A. Yes ; we were cheering, and they were cheering. Q. Did they come down towards any place ? A. They came down to a wall. Q. Did the cavalry pursue their course towards the wall ? A. Yes. Q. What speed did you go ? A. I went at a trot. I was on my own mare ; and she was a fast trotting mare ; and could trot faster than some horses could gallop. Q. Had she come from Stirling that morning ? A. Yes. Q. Had she been on a march the day before ? A. Yes. Q. Where from ? A. Between here and Perth. Q. What took place on your going to the wall ? A. We had to come round the angle of a wood ; and as soon as we came round the angle, they fired some shot at us. Q. How near were you when the first shot was fired ? A. From thirty to forty yards. Q. In what way was the shot fired, or shots from mus- kets, or pistols, or how ? A. It was impossible to say. Q. Where were the persons who fired them ? A. Behind the wall, to the best of my belief. Q. Had your party fired before those shots took place ? A. No ; they had not. Q. After that, you got through a gap in the wall. A. Yes. Q. Then there was a skirmish took place ? A. There was a skirmish took place. Q. Do you remember any of the persons in that engage- ment ? A. My attention was directed to the man who wished to take my arms away on the road ; and that man is not taken. Q. Is there any other person that you can recognize or identify ? 192 A. I can identify them all after they were taken, but not before. Q. How many were taken and formed up after the en- gagement ceased ? A. Eighteen. Q. Are you quite sure that the eighteen who were so ta- ken and formed up, were all engaged in that skirmish against you and the troops ? A. To the best of my belief. Q. What became of those eighteen ? Were they march- ed to Stirling ? A. Yes. Q. Did you accompany them to Stirling ? A. Yes. Q. Did you see them delivered over to the Castle here ? A. Yes. Q. Were the eighteen that were handed over into the custody of the same person in the Castle, the persons that you brought from Bonnymuir that day ? A. Yes. Q. And, as far as you believe, all engaged in this skir- mish ? A. Yes. Q. You pointed at two men, as men who stopped you on the road ; were those in the battle ? A. Yes. Q. Did you see them ? A. I saw them formed up with the rest. Q. Did you see, after the battle was over, any arms that were collected, which had been taken from persons engaged ? A. Yes ; I picked up a pike myself. Q What number of pikes might be collected, do you re- member ? A. I cannot pretend to say. Almost every man had a pike and a gun. Every man that came into Stirling had some arms taken, but I cannot say what they were ; I was a private at the time, and for that reason did not take no- tice. 15 193 Q. The whole of them had arms of one description or another ? A. To the best of my belief they had. Q. Did you see any ammunition in the field? A. No. I saw a haversack on a man's shoulders. Q. Did you see what it contained ? A. No. Q. It was not examined in your presence ? A. No, it was not. Cross-examined by Mr Jeffrey. Q. You said, I think, that you recognized, in the skir- mish, the men who had asked your arms on the road ? A. Yes ; two of them. Q. And you say that man was not among the prisoners after the skirmish A. There were three of them. Q. But one man asked your arms upon the road ? A. Yes. Q. That man is not here ? A. No. Q. One man asked your arms, and another interfered and said, " Do not take them." A. Yes. Q. Can you recognize the person who made the last ob- servation ? A. No, I cannot ; it was made amongst them. Q. You told them at one time you were friendly to the cause, and had been a weaver Had any of them mention- ed their being weavers before that ? A. No. Q. How came you to mention you were a weaver A. Because I was one, and I knew the situation of their affairs. Q. Did you merely conjecture they were weavers from what they said ? A. They did not mention what they were. VOL. i. N 194 Q. It was one person that took out this roll of haftd bills, and gave you one cffit ? A. Yes. Q. Can you recognize that person ? A. No, I cannot ; it was one of them, which I cannot pre- tend to say. Q. You recognize this man, and another man was it either of those two ? A. I cannot say. I do not know which it was. Q. Did any other conversation pass that you have not mentioned, at the time they stopped you on the road ? A. Not to my knowledge ; 1 have mentioned every thing, as far as I know, as passed between us. Re-examined by Mr Serjeant Huttock. Q. You say you cannot recollect by whom the hand-bill was delivered to you ? A. Yes. Q. It was delivered by one of the five or six ? A. Yes. Q. Did the other persons see it delivered to you ? A* Yes, they were all around me. Q. Therefore, the others saw that delivery take place f A. Yes. ELLIS HODGSON, Esq. residing in Stirling, Lieutenant in 10th Regiment of Royal Hussars sworn. Examined by Mr Serjeant Hullock. Q. I believe you are a Lieutenant in the 10th Hussars. A. Yes. Q. And were so on the 5th of April last ? A. I was. Q. We understand you marched early that morning from this place to Kilsyth ? A. Yes, I did. 195 Q. At what tinie iriight you arrive at Kilsyth ? A. About half-past five, I think. Q. Were your horses considerably jaded after the march you had had that night and the day before ? A. Yes, they were ; we had gone very quick, at least quicker than we generally do. Q. How soon after that was it you received information that induced you to set forward again ? A, I should think, about an hour and a half. I am not certain as to the time. Q. Was that information derived from Cook ? A. No ; first from Mr Baird of the yeomanry* Q. Mr Nicol Hugh Baird? -/. I do not know his name. Q. You received some information from htm, which in- duced you to put yourselves in motion ? A. Yes. Q. How soon was that before you saw Cook come in ? A. I should think, about ten minutes or a quarter of an hour. Q. Cook had been left behind ? A. He had been left behind at Stirling, from not being able to find him at night; he had changed his quarters. Q. Did Cook shew you any paper after his coming to Kilsyth ? A. Yes, he did Q. Was Lieutenant Davidson present at the time ? A. I think he was ; I am almost certain he was. Q. Did yod read that paper, or return it? A. 1 looked at it at the time, and saw the nature of it. I did not read the whole of it ; I saw that it was an address to the people. Q. You did not read it through ? A. No ; I did not at the time ; I had not time. Q. Was that the first time that you had seen an address of that description, as far as you recollect ? A. I am not quite certain ; I think L had seen one the day before, at Stirling ; I could recollect in time, but I am not certain. 196 Q. You did return it to him, after glancing your eye over it, very soon ? A. I gave it back to Cook. Q. Did you soon after that set off from Kilsyth ? A. Yes. Q. On whose horse did you ride ? A. I believe it was a Mr Thompson's of the Yeomanry. Q. Your own horse ? A. I wished to save our own horses if I could ; I thought we were likely to have a good deal of work for them. Q. Were any of your men mounted on yeomanry horses ? A. Yes ; ten or twelve. Q. Did you assume the command of some Yeomanry ? A. Yes. Q. How many did the party consist of? A. I think thirty-two; there were sixteen of our own. Q. You went in consequence of the information you re- ceived ? A. Yes ; we went in the direction of Falkirk. This place, or Falkirk, the road is the same at first. Q. Do you remember receiving a paper from Cook again, afterwards ? A. Yes; on the road I asked him for it, when we had gone about a mile, and I said, " You had better give me that paper." Q. You asked him for the same paper which you had re- turned to him at Kilsyth ? A. Yes. Q. And that paper you received from him ? A. Yes. Q. Did you look at it ? A. I put it into my pocket, and looked at it afterwards* Q. When? A. I do not remember when. Q. What became of you and the party? A. We proceeded towards Falkirk. Q. Describe what took place, and the order of the events, till after the battle of Bonnymuir. 197 A. We got intelligence which way the men who stopped Cook had gone, and were directed to a part of the muir, to which we proceeded, and found the men on the other side of a wall from us ; they gave a cheer, and ran down in the direction towards us, to the wall; when we came within gun- shot of them, (perhaps fifty or sixty yards,) they fired upon us. Q. What number of shots might be fired ? A. I am positive to two or three ; there might be more, but two I am sure they fired. We had to go over the muir for half a quarter of a mile, to get to them ; and when we came near the wall they fired two or three shots, or perhaps more. Q. Were those shots fired from muskets or pistols ? A. It is impossible to say. Q. Did you continue to advance ? A. We continued to advance till we got close to the wall ; when we were close to the wall I ordered them to lay down their arms ; at the same time, ordered my own party to cease firing, (they had returned the firing,) which they did do ; and after ordering them five or six times to lay down their arms, I got round through a little gap there was, to the same side as them. Q. You were followed by your men ? A. Of course. Q. You say you ordered your men to cease firing ? A. Yes. Q. Are you quite sure you were fired on before any shot was fired by your party I A. Oh, certain. Q. Then upon getting through this gap, what was done? A. A few of the men had got through, and I presented my pistol at one of the men who appeared to be the ring- leader, and it flashed in the pan and did not go off. Q. Were you near him c 1 A. Close to him. Q. Just see if he is here now ? A. That is the man, (Baird.') Q. Did you put the pistol to his head ? 108 A. No, I put die pistol to his breast. Q. Was that in return to the same compliment f A. His musket had been presented at me the whole time I was getting round the wall. Q. Do you know whether he pulled the trigger ? A. I have been told so since, but I do not know. A Juryman, Do you mean the man in the brown coat ? A. Yes, that is the man. Mr Serjeant Hullock. After you got throggh the wall, was any resistance made by them, and in what way ? A. They stopped us they would not allow us to proceed, and we of course charged them immediately, and we had a short skirmish with them, and they dispersed. Q. Were there any shot fired by them afterwards ? A. Some shots were fired, but whether by my own party, or them, I do not know. Q. Did they make any resistance ? A. Yes, with pikes. Q. In what way as other pikemen do when attacked by horses ? A- They resisted us with the pikes presented to us. Q. Did any of those pikes come near you ? A. I was wounded in the hand, and my horse was killed by one. Q. What part of the horse was struck ? A. In the quarter. Q. Did he die on the field, or take you out ? A, He took me off the field, anJ did not die till that night. Q. Where was your hand ? A. I had a pistol in my hand, I fancy, and I was making it fast. Q. Did it go through P A. It went from this side, (the outside.) Q. Were any of your men wounded ? A* The serjeant. Q. Were both pike wounds ? A. Yes. Q How many did you succeed in taking finally ? 199 A. We brought to Stirling eighteen, and left one on the field very much wounded ; we thought there might be 9 chance of a rescue, and I left him there, thinking it was better to secure what we had. Q. Do you remember what number of muskets there were ? A. I think there were sixteen pikes and one pike handle, and a pitchfork, and five muskets or guns of different kinds, end two pistols. Q. Any swords \ A. No, I do not think there were ; there was some am- munition. Q, All those articles were taken on the field at the time I A. Yes, they were. Q. You saw them probably put together at the time ? A. I saw them collected. Q. Were they brought to the Castle in this town f A. Yes, they were. Q. Along with the prisoners ? A. Yes. Q. You spoke of some ammunition, did you see any of the men on the field searched after the engagement ? A. I was collecting the prisoners, and when I came to the place where some of them had stopped at, I asked if they had searched the prisoners ; they said, " Yes, and we have taken a bag of ammunition away from them." Q. You did not see the search ? A. No. Q. Who told you that ? A. I think the serjeant-major. Q. Did he shew you the bag ? A. Yes. Q. Did you look at the contents ? A. Yes ; I saw some ball-cartridges. Q. But who put them in, you cannot tell ? A. No, I cannot. Q. Have the goodness to look at those persons, and tell us which of them you can recollect to have seen in the en- gagement ? 200 A. That man that is standing up ; I know his name is Gray Baird, Johnstone, Hardie ; and there is a man stand- ing on his farther side, (Hart, 1 believe his name is,) he was there ; and this man in the grey trowsers, (Moir) I think ; that man, I am not positive, (Murchie.) Murchie stood up. A. That is the man. Q. You remember his eye, as in the battle ? A, After the battle. I am quite certain about him. I do not think there are any more; their faces are now familiar to me, from having seen them in Court since ; but those I know, recognized when I first saw them afterwards in Edinburgh Castle, except the man who was wounded, (Hart) I did not see him then. Q. You are certain he was in the battle ? A. Quite certain. Q. Do you know the man by whom you were wounded ? A. No, I do not. Q. Did you accompany them from the field to Stirling? A. No, I did not; I staid to write some letters at Bonny- bridge. Q. Did you accompany them as far as that bridge ? A. Yes, I did ; and after that I overtook them, and rode to Stirling with them. Q. Are you quite sure that all the persons who were de- livered over to the custody of the proper officer in this place, were in the skirmish ? A, I am quite certain of it. Q. In what way were they conducted along the road ? Did they walk as they liked, one with the other ? A. Yes, as they chose ; we kept them close together ; we had a cart for the wounded, and they were surrounded by the men. Q. Who walked together ? A. I observed two walking arm in arm together. Q. Who were they ? A. Baird and Harciie, they walked in the rear the great- est part of the way, arm in arm. Q. They did not appear to be strangers to each other ? 201 A. Not at all on the contrary. Q. Is there anything more that you know about the bat- tle, or about the circumstances, that occurs to you ? A. No, I am not aware of any thing. Q. You stated, that in your progress from Kilsyth to the place at which you finally arrived, (Bonnymuir) you direct- ed Cook to restore that paper to you ? A. Yes. Q. Have you got it ? A. I gave it to the Lord Advocate, I signed my name upon it. Q. Just look at that, and see if that be your hand-writing at the back of it. (Handing a paper to the witness.} A. Yes, it is ; I wrote it with my left hand, and that is the paper I got from Cook ; that paper was out of my hands before it was given to the Lord Advocate ; I gave it to the commanding-officer of the regiment to copy, but the words were the same. The address I received was exactly the same form as that, the same signature, and the same ad- dress ; 1 am quite certain of that. Cross-examined by Mr Jeffrey. Q. Am I to understand that that is another copy of the game address ; or, for any thing you know, the same iden- tical paper ? A* That is the same address, I fancy, but it is the same words ; it was out of my hands for a short time, so that I cannot swear to it. Q. How long was it out of your hands ? A. I think one night. Q. Where? A. In the hands of the commanding-officer of the regi- ment Colonel Taylor. Q. Had you read over the whole address by that time ? A. Oh yes, I had. Q. Oftener than once ? A. Not oftener than once, I think ; certainly not ; I know I had read it once the whole of it. 202 Q. When you left Kifeyth with your party, you went with a view of finding those men, of whom you had received information ? A. Yes. Q. What did you mean to do with them ? A. To secure them to take them prisoners. Q. And take their arms ? A. To take the men, and to take their arms, of course. Q. Had your men their swords drawn when they came in sight of the party on the hill? A. I do not think they had No, not till we came in sight of the party I am not positive I should think not. Q. Had they their swords drawn before the men fired ? A, I thinjc so ; whether I had given the word or not, I do not know ; but probably they would have their swords drawn. Q, Did you go up the muir pretty smartly ? A, As quick as we could. Q. And they fired first ? A. Yes, of course. Q. And as soon as you got near enough to be heard, you called to them to lay down their arms I A. As soon as I was close to them ; I did not call at the distance of fifty or sixty yards. Q. Was any person in attendance, taking charge of them, or were they in one line ? A. Baird appeared to me the leader. Q. But there was no person standing out for you to ad- dress ? A. I could address the whole ; they must all have heard me. Q. They were pretty close together ? A. Yes ; they were in a small body, perhaps half a yard or a yard from each other. Q. You got eighteen, and one was wounded j did any escape, do you know ? A. I cannot answer that. 203 Re-examined by Mr Serjeant Hullock. Q. You addressed them several times ? A. I should think, six or seven times. Q. State the language you used at that time ? A- Lay down your arms ; I said nothing else. Q. Are you quite sure you were near enough, at the time you repeated that expression, to enable every person in the body to hear you ? A. Decidedly so ; for I spoke very loud, and they were all quite near enough to hear me. Q. Was any alteration made in their movements at all ? A. They did not fire any more, but they did not lay down their arms. Q. And the resistance took place that you spoke of, when you got through this gap in the fence f A. They did not fire any more till we got into the mid- dle of them, and then I do not know whether they fired any more or not. Q. You do not know whether the firing then was by your party or them ? A. No, I do not. Mr Jeffrey. Did they say any thing at all after you call- ed out to them to lay down their arms ? A. The word " Treat" was mentioned by one of them ; I thought they said, " We will treat with you ;" but any thing else I do not remember. Q. Do you know who said that ? A. I do npt know which of them. I heard the word " Treat," and it struck me that they wanted to make terms with us. Lord President. Prisoner, have you any thing to sug- gest? Prisoner. No, my Lord. Mr Serjeant Hullock. Did you mark any of the arms that were left in the Castle ? A. I left my signature upon them. 204 Q. On the day of their arrival ? A. Yes ; but I did not see it wafered on, so that perhaps I shall not speak correctly about that. JOHN JAMES DAVIDSON, Esq. Lieutenant in Kilsyth Yeomanry Cavalry sworn. Examined by Mr Drummond. Q. You are a Lieutenant in the Kilsyth Yeomanry ? A. Yes. Q. Do you remember going out from Kilsyth on the 5th of April, in the morning, towards Bonnymuir. A. Yes. Q. Describe the first thing you saw when you got near the place ? A. The first thing I saw on getting near the muir, was a number of men assembled upon a head. Q. At Bonnymuir was that ? A. At Bonnymuir. Q. What were they doing at the time you saw them first ? A. I rather think they were sitting at the time I saw them first. Q. Did you advance with your party towards them ? A. Yes. Q. Tell what passed ? A. When we got within about a quarter of a mile of them, they came down from the head, towards a wall ; and when we got within about seventy or eighty yards of them, they fired upon us. Q. Were they at the wall at the time they fired ? A. They were. Q. Close behind the wall ? A. Yes. Q. How many shots did they fire ? A. I think two shots at that time. Q. Are you certain they fired first ? 205 A. Perfectly certain. Q. How near were you to them at the time those two shots were fired ? A. About seventy yards, I think ; I cannot be exactly sure of the distance. Q. After that, did you get through the wall ; or what was done? A- We got through the wall. Q. What did Mr Hodgson do ? A. He desired them to lay down their arms. Q. Was he without the wall at that time ? A. He was at the other side of the wall. Q. Do you remember what he said ? A. I cannot remember the precise words, but it was to the purpose of laying down their arms. Q. Did they lay down their arms when he desired them ? A. They did not. Q. Did any of your party go through the gap afterwards ? A. Yes. Q. Who went first ? A. Mr Hodgson. Q. Was there any attempt made to prevent their getting through ? A. Yes, there was. Q. In what manner? A. By presenting some pikes at that gap. Q. Were the men upon their knees who presented their pikes, or how ? A. Some of them were. Q. Was there any firing at that time? A. I cannot say ; I rather think there was no firing at- that time. Q. After they got through the gap, what passed then ? A. We made a kind of charge at them, and they gave way immediately. Q. Do you know the men again that made the opposition with the pikes, or made resistance at that time ? A. Yes. Q. See if you can point them out there. 06 A. I know John Baird. Q. Any other ? Do you kttoW the matt in thfi black coat in the centre, (Hardie.) A. Ye*. Q. What were those doing at the time ? A. At the time that Mr Hodgson went through the gap> and during the time he was desiring them to lay down their arms, Baird was presenting a short gun or blunderbuss at Mr Hodgson. Q. Did that other man stand with Baird, or what did he do? A. He was in the front; I do not know exactly what he was doing at that timo. Q. Did you observe any thing he did in the course of the business ? A. No. Q. Did he make a stand ? A. No ; I cannot say in regard to that* Lord President. Was the prisoner in the front when you were passing the gap ? A. Yes, he was. Mr Drummond. Were they almost all armed ? A. I think I saw none unarmed. Q. The arms were taken possession of at the same time that the men were, I suppose ? A. Yes. Q, Do yon remember the number of the pikes ? A. I think there were seventeen or eighteen ; I cannot tell the number. Q. And how many muskets ? A, Four or five. Q. And a pitch-fork ? A. Yes. Q. Any pistols ? A. There were some pistols j I do not know how many. Q. Any ammunition ? A. Yes, some ammunition in a bag. Q. Did you see it at that time ? A. Yes ; I saw the bag at the time 207 Q. Where did you see it first ? A, I saw it in the hands of one of our party. Q. In whose hands did you see it ? A. I believe the first person I saw with it was my cousin. Q. What was his name ? A. John Davidson. Q. Did you see the prisoners searched, and whether there was any thing found on their persons? A. There were a number of them searched. Q. Did you see what was found upon them ? A. There were cartridges found on them, I believe. Lord President. Did you see it ? You say you believe. A. I saw some of them searched. Mr Drummond.^~Were they carried to Stirling ? A . They were carried to Stirling, and lodged in the Cas- tle. Q. And the arms and ammunition taken with them I A. Yes. Q. Did you see them lodged there ? A. Yes, I did. Q. Both the men and the arms ? A. Both the men and the arms. Q. Would you know the arms again ? A. I think I should know some of them ; I remember this one, (a pike) and I remember that one also, (another pike.) Q. Did you see any of this sort ? (Another pike.) A. Yes ; I saw that one certainly. Q. There is your name to it ? A* Yes. Q. Did you see it put on ? A. No. Q. But you saw a thing of this kind ? A. Yes, I remember that one. Q. Look at the guns ? A. I remember this one ; I do not remember any others. Lord President. Andrew Hardie, have you any question to ask ? Prisoner. No, my Lord. 208 ALEXANDER COUTTS, Gardener at Colzium, in the parish of Kilsyth sworn. Examined by Mr Hope. Q. I understand you are a private in the Stirlingshire Yeomanry, in the Kilsyth troop ? A. Yes. Q. And you were one of the party that marched from Kil- syth to Bonnymuir, in the beginning of April last ? A. Yes. Q. And you were present at the skirmish that took place between a party of men there, and a party of the lOlh Hus- sars and the Yeomanry ? A. Yes. Q. You went along with the rest of the troops towards a wall? A. Yes. Q. And some shots were fired across the wall ? A. Yes. Q. Did any of the Hussars or Yeomanry attempt to get over the wall ? A. We got through at a slap in the wall. Q. Was any opposition made to your getting through at that slap ? A. Yes ; a good deal of opposition. Q. In what way ? A. Both shooting and pikes. Q. After you got through the slap, was there any further opposition made ? A. Yes. Q. Did that appear to be made generally by the whole party ? A. I could not have my eyes on all the party ; but those who were using their arms, I can identify some of them. Q. See if you observe any persons at the bar who were ac- tive in opposing the cavalry in going through the slap ? A. I see two just now. 3 209 Q. Which two ? A. This one, and the second again. Q. Do you know his name ? A. Yes, Baird. Q. Mention another ? A. Hardie* Q. Did you see them taken prisoners ? A. Yes, I did. Q. Did you say any thing to them at that time ? A. I said, I mark you two. Q. Had that man (Hardie) been active in opposing the cavalry ? A. Yes, he was. Q. Throughout the whole business, or at any particular time ? A. As soon as I got my eyes upon him. Q. When did you first see him ? A. A little before I went through the slap. Q. What was he doing then ? had he a gun in his hand, or a pike ? A. It was a pike. Q. He opposed the cavalry, you say, at the slap in getting through ? A. Yes. Q. And did he offer opposition afterwards ? A. Yes. Q. Did you see any bag taken in the field from any of the party ? A. I saw a bag when the prisoners were taken among the rest, but I did not see the bag taken ; I saw the bag when we had convened the prisoners. Q. Did you see any of the prisoners searched ? A. Yes, I searched one coat myself. Q. Was any thing in that ? A. Nothing. Q. Did you see any other person searched ? A. I saw one, but I do not know him. Q. Did you see any of the men searched ? A. Yes, I saw some searched. VOL. i. o 210 Q. Was any thing found in their pockets ? A. I heard our men speaking about it. JOHN DAVIDSON, Farmer in Kilsyth Farm sworn. Examined by Mr Serjeant Hullock. Q. I believe you are a member of the Kilsyth troop, are you not ? A. Yes. Q. And you were in the skirmish ? A. Yes, I was. Q. After the close of the engagement, did you either take, or see taken, any bag from any one of the persons who were taken ? A. There was a bag taken from one of them. Q. Did you see it taken ? A. I saw it taken by one of the Hussars. Q. Did you examine the bag the contents of it ? A. I had the bag in my possession, and several parcels of ball-cartridges were put into it, and powder both. Q. Do you know the man from whom it was taken ? A. I cannot say positively. Q. Was he a man that had been engaged in the trans- action ? A. He was one of the prisoners. Q. You say some ball cartridges were put into the bag ? A. Yes. Q. Did you examine the bag before those were put into it? A. No. Q. Where were the ball cartridges taken from that you saw put into the bag ? A, They were taken from the persons of several of the prisoner. Q. Did you see the men examined ? \ A. I saw them searched by some of the party; some of the Hussars or Yeomanry, I cannot say which. 211 Q. How many of the men's persons might you see so searched ? A. Two or three, more or less ; I believe the most of them were searched. Q. Can you take upon you to say, from your recollection, whether ball cartridges were found upon each man, or only upon some of them ? A. I cannot say that. Q. You are sure they were found on some of them ? A. I saw the parcels taken from some of them, and put into the bag. Q. You saw their arms collected, did you not ? A. Yes. Mr Serjeant Hullock. My Lord, there are other wit- nesses who were engaged in the transaction, but we do not think it necessary to call them ; we, therefore, propose to read the declarations of the prisoners. Lord President. Have you any questions to put to the witness ? . No, my Lord. ALEXANDER Dow, Esq. one of the Sheriff- Substitutes of Stirling sworn. Examined by Mr Drummond. Q. Look at that declaration, (handing a paper to tlie wit- ness?) Was that declaration emitted by the prisoner at the bar in your presence ? A. Yes. Q. Freely and voluntarily ? A. Freely and voluntarily Q. He being of sound mind, and in his sober senses at the time ? A. Yes. 212 ROBERT SCONCE, Esq. writer in Stirling sworn. Examined by Mr Drummond. Q. Look at that declaration, (handing a paper to the wit- ness.) Was that emitted by the prisoner at the bar freely and voluntarily, he being in his sober senses and of sound mind at the time ? A. It was. ADAM DUFF, Esq. Sheriff-Depute of the County of Edin- burgh sworn. Examined by Mr Drummond. Q. Look at those two declarations, and state the dates of them to the Court, (lianding two papers to the witness.) A. One declaration is dated the llth day of April, the other declaration is dated the 14th of April. Q. Those were both emitted in your presence by the prisoner at the bar, freely and voluntarily, and when he was in his sound and sober senses ? A. Yes. Q. Look at this paper, (handing a paper to the witness,) you see a mark on the back ? A. Yes, I do. Q. That is a paper referred to in one of those declara- tions ? A. It is. 213 JOHN WATKINS, Depute Sheriff-Clerk of County of Edin- burgh sworn. Examined by Mr Drummond. Q. Look at this ? A. Here is a declaration dated the llth of April, and another of the 14th April. Q. Both emitted in your presence by the prisoner at the bar, freely and voluntarily, in his sober senses ? A. Yes. Q. Is that the document referred to in his declaration on the llth of April, (handing a paper to the witness.) A. Yes. (The following Declarations of the Prisoners were read.) At Stirling Castle, 7th April, 1820. In presence of Alexander Dow, Esq. one of the Sheriff-Sub- stitutes of Stirlingshire, compeared Andrew Hardie, weaver in Glasgow, present prisoner in Stirling Castle, to whom a petition, at the instance of Robert Sconce, writer in Stirling, Procurator- Fiscal of Court for the public interest, with the Sheriff-Substitute's warrant thereon, was read over. And the said Andrew Hardie being examined thereon, Declares, that what is stated in said petition is true, as the declarant cannot deny but that he was in arms : That he left Glasgow upon Tuesday night last, about twelve o'clock, in the com- pany of several others, to the number of twenty, or thereby : That the declarant did not know the reason of their leaving Glasgow, nor where they were to go, but he was informed that a person was to accompany them who was to let them know as to this : That after he left Glasgow, he understood that the country was in arms, and that they were to join with one another : That the man who was t j give them in- 214 structions proceeded on the road before the party, and al- though the declarant saw him, he does not know his name, qr any thing about him : That the first place they halted at, after leaving Glasgow, was the village of Condorrat, where they got a glass of whiskey and a bit of bread : That the declarant did not pay any thing for what he got there, and he did not see any thing paid, but he supposes the bread and drink was paid for by John Baird, weaver in Condorrat, as it was he who desired the men to go into the house for the refreshment : That after they left Condorrat, part of them went by the canal, and part by the high road towards Camelon : That the declarant went by the high road, and both parties joined upon the banks of the canal, where they sat down and halted some time : That after halting there some time, a man came from Camelon, who told them that the people were unwilling to turn out, or words to that purpose, upon which they went to the muir, determined to stay till night, when they were to return to Glasgow : That after they were sometime in the muir, the cavalry made their appearance, and the declarant then rose up and pro- ceeded with the rest down the hill to meet the cavalry. Declares, that he cannot say who commenced the firing, but there were shots exchanged : That the declarant had a pike in his hand, but did not use it ; and he called to the men who were with him to lay down their arms, and called to the cavalry to give quarter, and spare the men's lives. Declares, that the declarant brought a firelock with him from Glasgow, which he had for several years : That when they were coming down the hill to meet the cavalry, some other man got his firelock and he got a pike : That to the best of his knowledge, most of the party were armed when they left Glasgow : That some of them had pike-shafts, but the heads were not fastened on till afterwards, and he thinks some had them fastened on at that time : That Baird at the time of the fight had a small firelock, but the declarant cannot say whether he discharged it or not : That he thinks at the time they went down the hill to meet the cavalry, the men considered that Baird had a sort of lead : That he (Baird) seemed to take a more active part than the rest : 21, That the declarant himself had no view to commit plunder or to shed blood, and he believes that none of the party with whom he was had : That about an hour and a half before they were taken prisoners, they met one of the Hussars on the road : That one of the party with whom the declarant was gave him a bill, or paper, the nature of which the de- clarant does not know : That they asked the Hussar where he was going, and some of them were for taking his arms from him ; but the declarant gave his assistance in prevent- ing this, and nothing was taken from him, and no shot was fired after him. Interrogated, Declares, that it was their purpose in going out to effect a change in public affairs : That the declarant did not mean the subversion of Govern- ment, but what he wanted was the restoration of the people's rights : That they wished Annual Parliaments and Election by Ballot : That the declarant does not mean that the people ever had Annual Parliaments and Election by Ballot, but that he conceived the people had a right to obtain what the majority of the nation applied for; and the declarant's idea was, that it was the duty of a proper government to grant whatever was thus applied for. And all this he declares to be truth. (Signed) ANDREW HARDIE. ALEX. Dow. At Edinburgh, and within the house of the Governor of the Jail there, the 1 1th April, 1820. In presence of Adam Duff, Esq. Sheriff-depute of the shire of Edinburgh, compeared Andrew Hardie, present prisoner in the Jail of Edinburgh ; and the declaration emit- ted by him upon the seventh day of April current, at Stir- ling Castle, with the petition therein referred to, being read over to him, declares and adheres to the said declaration, which is signed by the Sheriff and the declarant, as relative hereto, of this date. And being further examined and in- terrogated, declares, that he left Glasgow by himself, on the night of Tuesday last, at about half-past ten o'clock, in or- 216 der to join a party of radicals which he heard were to assem- ble near Gadshill. Declares, that he received this informa- tion about a quarter past ten, from two people whom he met on the streets of Glasgow, whose names he does not know. Declares, that he heard several times, in the course of the evening of Tuesday, that there was to be a general rising of the people in the country ; that England was all in arms, and that the mail coach was not to come in next morning. De- clares, that he carried his firelock with him from Glasgow, but he had no ammunition : That he got three ball-car- tridges at Gads-bridge, from a man whom he did not know. That this man was a tall man, dressed in dark-coloured sur- tout ; who, when he gave the declarant the cartridges, wish- ed him success, and said, he would join them soon, but the declarant never saw this man afterwards. Declares, that he met a party of about forty men at Gadshill : That there was a man said he had got instructions how to act, and where to go, and said the country was in arms. Declares, that this man was a little man, rather stout made, and appeared to be about forty years of age ; he was dressed in a brown short coat and dark trowsers. Declares, that this man went on before them, to the different villages on the road, as far as Camelon, but the declarant never saw him after he left them to go to Camelon : That this man appeared to be like a tradesman, and was but indifferently dressed, and seemed a very active man. Declares, that the party went on to Con- dorrat, where they were joined by John Baird, mentioned in his former declaration : That the declarant had never pre- viously seen Baird ; but the man already mentioned, before getting to Condorrat, said, that he was going to meet Baird at Condorrat, and the declarant, from this, supposed that this man and Baird were acquainted. Declares, that some of the party, before getting to Condorrat, were carrying shafts without pike heads, and some without weapons $ but after they left Condorrat they were all armed with pikes or muskets, except two or three. Declares, that the man al- ready mentioned as going before the party, was in Condor- rat a few minutes before the arrival of the party. Declares, that in thetnorning after leaving Condorrat, the declarant 217 recognized Alexander Johnston, Andrew White, and Da- vid Thomson, present prisoners in Edinburgh Jail : That the declarant had previously known these people only by sight, and did not know their names. Declares, that Baird, and some others, joined the party at Condorrat. Declares, that at a canal bridge at some distance from Condorrat, the party separated into two divisions one taking the high road towards Camelon, and the other proceeding by the ca- nal bank, in order that they might not miss people whom they expected to meet coming from Camelon : That the de- clarant was of the party who went by the road. Declares, that Allan Murchy, present prisoner in Edinburgh Jail, and two men of the names of Henderson and Alexander, were of the declarant's party. Declares, that after proceeding some way on the road, they saw a hussar, who halted on see- ing them j but the declarant called to him to come forward, as there was no danger : That the hussar came forward, aud stopped, when one of the declarant's party seized the horse by the bridle, and Henderson gave the hussar a folded pa- per : That the declarant did not know at the time what this paper was ; but he was told, at Stirling, that this paper was a copy of the Address to the Inhabitants of Great Britain, which had been posted up at different parts of Glasgow. The hussar was then allowed to go on, and no attempt was made to take his arms ; and a printed copy of said address being shewn the declarant, declares, that he never saw the same, or any copies of it, till he saw it posted up at Glas- gow ; and the said address is subscribed by the Sheriff and the declarant, as relative hereto, of this date : Declares, that the party that went by the high road also met with a gen- tleman riding towards Glasgow : That they advised this gen- tleman to return back; but they did not search him, or ask him for arms : That this gentleman went on for some way towards Glasgow, but afterwards returned, and passed the declarant's party, when he said, he would take their advice. Declares, that the whole party were unanimous as to taking arms wherever they could find them ; and they searched a few houses for arms, but they only got one musket in the course of this search. Declares, that there was no resistance 218 to this search made at the houses. Declares, that the hus- sar, when he stopped, said he was a weaver, and a friend to the cause, and that he had a wife and five children. De- clares, that the whole party which left Condorrat got some refreshment at a bridge on the canal, before they separa- ted, and the allowance to each was half a bottle of porter and a pennyworth of bread. Declares, that this refreshment was paid for by Baird : That the reckoning came to seven shil- lings and sixpence ; and Baird borrowed four shillings from the declarant for this purpose : That the landlord gave Baird a receipt for the said sum : That the declarant carried this receipt in his hat for some time, and then gave it to Baird ; and a receipt, signed Archibald Buchanan, being now shewn the declarant, he declares, that it is the receipt above refer- red to ; and the same is now subscribed by the Sheriff and the declarant, as relative hereto. Declares, that both parties joined on the banks of the canal, within sight of a town which he understood was Camelon : That the party who had gone by the canal had reached this point before the declarant's party ; and upon the declarant's party joining them, they were told that the Camelon party was not to rise. Declares, that there was with the party, at this time, an old man, who, as the declarant understood, had come from Ca- nielon, and had brought this intelligence. Declares, that he does not know the name of this old man, but he afterwards saw him in Stirling Castle, wounded. Declares, that the de- clarant's party, on going down the hill to meet the cavalry, as mentioned in his former declaration, began cheering. Declare?, that the dccjarant did not consider himself as ha- ving any charge of the party with which he went by the road ; but he took a charge, when the hussar came up, to prevent his being hurt. Declares, that what is mentioned in his former declaration about Annual Parliaments and Election by Ballot, is what he has heard from others, as the declarant does not understand or interfere in politics him- self. All which he declares to be truth. (Signed) ANDREW HARDIE. ADAM DUFF. 219 At Edinburgh Castle, 14th April, 1820. In presence of Adam Duff, Esq. Sheriff-depute of the shire of Edinburgh, compeared Andrew Hardie, present prisoner in the Castle of Edinburgh ; and the declaration emitted by him at Stirling Castle on the 7th current, and the declaration emitted by him at Edinburgh on the llth current, being read over to him, he declares and adheres to these declarations, with this addition, that after leaving Condorrat, he also recognized a lad of the name of Pink as being one of the party ; and that Pink is now a prisoner in the Castle. Declares, that when the hussar was stopped, as mentioned in his former declaration, and his horse seized by the bridle, the declarant, on recollection, rather thinks that he himself had a hold of the hussar's bridle. Declares, that the musket which the declarant's party took from a house, in their search for arms, as mentioned in his second declaration, was half-stocked, and was taken from a house off the road, hardly a stone-cast, and on the right hand co- ming from Glasgow to Falkirk : That there was a few houses on the road at this place. Declares, that the musket was hanging from the roof of the kitchen, about five feet from the fire. Declares, that there was an old man in the house ; and either this old man, or some other person, asked when he would get the musket again ; when the declarant said, he would give a receipt for it, but no receipt was required. Declares, that the three ball-cartridges mentioned in his second declaration, as having been given the declarant at Gadsbridge, were given by the declarant to the cavalry, when he was taken prisoner. Declares, that when at Condorrat, the declarant was ordered (but he does not recollect who gave him this order) to go to a shop for powder : That the declarant does not know who keeps this shop, but he got the powder without paying for it : That he supposes he got about a pound of powder, which was wrapped in a piece of paper, and given up by him to the cavalry, when he was ta- ken prisoner. Declares, that he also got seven loose bul- lets from a lad on the road, who was one of the party i but 220 this was at night, before reaching Condorrat ; and these but lets were also given up by him to the cavalry, when he was taken prisoner. Declares, that Henderson got the musket which was taken from the house where the old man was. Declares, that he knew Henderson by sight, previously to this, but he never was in company till that evening, but he had heard of Henderson being a radical. Declares, that the declarantwas at a meeting of radical reformers at Thrush- Grove, and he thinks it is upwards of two years since this meeting was held. (Signed) ANDREW HARDIE. ADAM DUFF. Lord Advocate.- We now propose to read the address. Mr Jeffrey. My Lord, with great submission, I conceive this address has not been brought so home to the prisoner as to entitle the prosecutor to read it. Mr Drummond. Which address ? Mr Jeffrey. Either of them, I think. Mr Drummond. There are three altogether. Mr Jeffrey. The last address cannot be read at all, be- cause all the prisoner said about it is, that he had seen such an address in the streets of Edinburgh, and he understood, after he was in custody, that the folded paper which he saw delivered to Captain Hodgson was a copy of the same ad- dress ; but this is merely matter of information. The only other two addresses produced is one taken down by Mr Hardie from the well in Glasgow, and another which ap- pears to have been delivered by Henderson, or some person in the party, to Cook, and by him given over to the com- manding officer who produced it. Now, with regard to the first of those, I submit that no other part can be put in evi- dence, except that which was uttered or communicated, or, in some measure, stated in the prisoner's presence. And, my Lord, it was for this reason I made no objection to Mr Hardie reading that portion of the address which he says he heard read in the presence and hearing of the prisoner, because I looked on that as parallel to a recollection of words uttered in the presence of the party accused ; and 221 whatever inference is to be drawn from that circumstance, I admit to be legitimately drawn, valeat quantum ; but I submit, that, as there is no evidence that more of it was read to the prisoner, or that he was acquainted with more of it, they cannot be allowed to read the remainder. It is not enough to put in evidence a paper, unless you shew that the party expressed approbation of its tenor and purpose. You cannot read a paper because a part of it was read in his presence. My Lord, that does not connect him with the whole, as a paper for which he is responsible ; and the rule is to refuse the reading such a document to the Jury, for fear of the prejudice that may arise, unless the prisoner is responsible for it in some way or other, or adopts it. There- fore, I submit -there is nothing proved as to that address, except as to the passage which has been read, and which may be read again. Then with regard to the other ad- dress Lord President. He prevented its being torn down. Mr Jeffrey. I am aware of that, my Lord ; but nothing is more natural than that a person, out of curiosity, should wish to hear a performance that began in so remarkable a way ; and that may account for his interfering to prevent its being pulled down, but is surely no ground for saying he is answerable for it. It might be a paper which he reprobated afterwards ; and there is no evidence that the tenor was ap- proved by him, and the evidence only goes to shew that part only had been communicated to him. Then, with re- gard to the third hand-bill,, or that delivered by some per- son to Cook, your Lordships will recollect that that person said, that he could not at all say by what individual it was so delivered that it was delivered out of a bundle of other papers, but he did not read it in the presence of any of the persons at the time ; and the declaration of the prisoner states, though that certainly is no more than my stating it now, that he was not then aware of its contents. Now, I apprehend, there is no precedent for holding, where parties have not been clearly proved to have been engaged in a con- spiracy, in a definite and distinct character, that the acts of one can affect the other ; and, though it may be anticipating 222 part of the observations on the evidence, I submit there is no evidence of such a conspiracy other than the direct evidence against the prisoner ; and therefore the act of this indivi- dual, who must be held not to be the prisoner indeed it is quite clear that it was not him is no sort of proof against him ; and therefore, I say, that the paper not being given by him, it is incorrect to make him responsible for its con- tents, or to allow him to be touched on that account in a matter like the present. I submit, therefore, there is no evi- dence on which the prosecutor can be allowed to read the whole of this, as forming a part of the evidence against the prisoner now at your Lordships' bar. Mr Serjeant Hullock. My Lord, I submit there is no ground for this objection ; I submit the first part of the ad- dress, proved by Mr Hardie, is admissible in point of law, on every principle received in courts of justice, and that the last address delivered by one of the party, in whose compa- ny the prisoner was, to Cook, is already admissible. As to the address taken down by Mr Hardie, it seems to be con- ceded, that the passage in that address which was read aloud, and which was in the act of being read to the party assembled in Duke-street, is admissible in evidence. Is that so ? then upon what legitimate principle is the other part to be excluded i I have yet heard none. I apprehend that it is quite clear, that where a person prevents a witness from, producing the original document by destroying it, or pre- vents him, without incurring the risk this gentleman must have incurred from getting it, it would be competent for me to examine him to the contents of that address, because the reason for my not being in a condition to produce it, was the misconduct of the party against whom I want it; if I give notice to produce a document, and the prisoner has prevented my getting it, am I therefore not in a condition to give evidence of the contents of it ? The principle of law is clear and uniform ; I may call any man who has read it to give evidence of it, because the man precludes me from giving the best evidence of it : Is not that the state of things here? Where is the loyal man that would prevent a subject from taking down an address of this description, or that 223 would spill the last drop of his blood to prevent it ; but this man does that upon that occasion ; he prevents Mr Hardie from taking that address down he seizes him by the neck, and throws him into the street he repeats it afterwards, and five or six men surround him, and put themselves in battle array to protect this loyal address; and are we to be told to-day, on principles of evidence, forsooth, that we are not to give in evidence the contents of that document ? I beg to say, there is no principle with which I am acquainted that ought to preclude us from reading that address, which Mr Hardie swears to be similar to that which he was pre- vented from taking down. So much for that address. Now for the other ; we are told, and gravely told, that, because the prisoner Hardie was not the hand that delivered the paper to the hussar (Cook,) that which was down, in his presence, they being acting in concert, and for one general object of treason, is not evidence against Hardie. We have proved Hardie was in the battle that he was at the consummation of this pure and unadulterated treason ; we have proved he was privy to all these arguments ; and we have proved, by his own de- claration, that he left Glasgow to join any party that would join him ; and then after that, we meet with him with five other persons in the room, acting in concert for the general enterprize and object ; and we are to be told to-day that which is inconsistent with every paragraph upon the subject of the law of Treason in every book on the subject, that that which is done by one man in the presence of another, or in his absence, let it never be forgotten, if it be in fact calculated to further the grand object, is evidence against the whole. But if this had been an ordinary felony, where the acts of one, in the absence of the others, is not evidence against the others, yet here they are acting in concert ; whether the prisoner knew the contents of this paper or not, he is bound, by the acts of his party, though not present at the time. I submit, therefore, in point of law, there is no objection to the receipt of these documents, either the one or the other. I expected my learned friend would have taken an objection to the identity of the address delivered to Cook. 224 Mr Jeffrey. \ mean to take it. Mr Serjeant Hullock. See how that takes place; Cook receives it and puts it in his pocket ; he comes and shews it, in the first place, to his officer, Lieutenant Hodgson, who has no time to read it ; he returns it, and in the course of their march, he requires Cook to restore it to him. Mr Hodgson certainly did not do that which he ought to have done, namely, have put his name on it before he handed it over to his commanding officer ; but it was stated it was only out of his custody a day or a night, to enable that commanding officer to copy it, and he believes that is the identical address ; he does not swear to its absolute identi- ty, but the question is, whether the evidence is not sufficient to establish that fact in such a way as to entitle us to read that address ; but I do not feel any anxiety on the latter ad- dress, because, if I understand the circumstances as to the address delivered in by Mr Hardie, I am entitled to read that one will do as well as a thousand ; and I submit I am entitled to read that address. Mr Jeffrey. I shall detain your Lordships with very few words, and shall begin with the address produced by Mr Hardie ; and I am happy to think, that with regard to that part of the case, the learned gentleman and I are not much at variance. With regard to the principle of evidence, I admit, that when a document, which, if it had been in the power of the witness, would have been good evidence against the prisoner, is prevented getting into his power by the act of the prisoner, the tenor of that paper may be proved : But I demur to the point, whether, if the paper had been actually here, more of it could have been read in evidence than that which was read by Mr Hardie ; and therefore, without dis- puting the point, that where a document is withheld by the act of the prisoner, the import of it may be otherwise pro- ved, I submit that this could be only where the document itself would be evidence against the party ; and I contend that it is no ground for the production of a paper, that a part of it was read in his hearing, and that is all that is pro- ved as to that first paper ; and therefore I submit, that be- ll yond the paragraph already read, no ground has been laid for receiving that evidence. But there is another and a separate objection, my Lords ; the paper produced is not the paper so read, but another paper, the identity of which depends upon the recollection of Mr Hardie. Mr Hardie, the magistrate, did not read further in the paper than the passage which he recited and marked out to the Jury ; he did not read the preceding part of it, and certainly not the subsequent part of it. Your Lordships will bear in mind, that the paper now offered is not the paper that he read part of, but a paper in which, from recollection, he says, the same passage occurs, but farther than that it is merely conjecture; and therefore, as it is not in evidence that the paper produced ever was in the eye-shot of the prisoner at the bar, I do submit, that that paper is not of a description which they are entitled to put in evidence. It is not proved by any thing like evidence that it is a copy of the same paper ; it never was collated or compared with it, and the witness did not read that which must be considered the original ; and therefore I submit, your Lordships cannot, consistently with the rules of evidence referred to on the other side, allow it to be produced against the prisoner at all. Now, my Lords, with regard to the other address, 1 do not dispute the general maxim of law relied on on the other side, that that which is done in the presence of a party not dissenting from it, may be put in evidence against him, al- though not done by his own hand or voice. I therefore cannot object to their proving the fact of the hand-bill ha- ving been produced and given by one of the party who were along with my client to this hussar ; but docs it follow from that rule, or is it not a monstrous and manifest perver- sion of the rule, that you are therefore to hold the prisoner responsible for its contents ? The delivery of the paper is an act done in his presence, and that fact may be put in evi- dence ; but if a man in my presence merely delivers a folded paper, which nobody reads, though there is no dissent or token of disapprobation manifested, on the legitimate appli- cation of the rule, I submit that could not be read where VOL i. p 226 there was no evidence that I knew the contents ; the deliver- ing a sealed paper in my presence cannot load me with a knowledge of its contents, which were not promulgated at the time. I submit, that this would be carrying the rule into a region in which it has plainly no force or existence ; and that, under pretence of making a person responsible for what is done in his presence, it is plainly impossible to make him responsible for the contents of a paper not read in his hearing. And, therefore, my Lords, upon that ground I humbly submit, that unless your Lordships hold there is euch an identity of pursuit and object in the whole, as I know has been ruled, to make a party in the absence, and without the knowledge of another, responsible for his act, on the ground of there being a concert, this paper cannot be read. But no such case of concert has been made out here ; because the only proof or allegation of improper acts laid before the Jury to-day, has been confined, in a great mea- sure, to the acts of the individual at the bar; and there are no facts of conspiracy made out between him and others in. those particulars to which the paper refers. And therefore, independently of the fact that this paper is not identified, I submit the delivery over of a folded paper in the presence of the prisoner is not such a presumption and ground of inference as to his knowledge of the contents, as to make it competent to produce the contents, which is different from producing the outside of the paper. If there had been evidence that the contents of the paper delivered to Cook were known to the prisoner, he might be answerable for the contents ; but I ask your Lordships whether the paper has been so identified by my learned friend, as, in a trial like this, to entitle him to lay it before the Jury in evidence ? It is said it had only been out of the custody of some of these persons one night ; that would strike out one link which is neces- sary to connect, and there is a discontinuance of the chain. Why is not the commanding officer here to supply it ? Can any thing be more clear than that which Captain Hodgson stated spontaneously, that he received a paper from Cook, of which he had no doubt this was a copy ; and though he had marked the paper now lodged in process here, yet that that paper was out of his hands, but he thought it was of the 227 same description ? That evidence of the identity of a paper is not receivable ; nay, recollection of a paper after months is not receivable to prove the identity of the document ; and with regard to the fact that it was out of his custody for a day or a night, it is admitting the point out of Court; be- cause unless you can trace the paper without one intermis- sion or interruption in the chain'of evidence, it is broken as much as if it was out of his custody a month ; therefore it was not so identified as to be capable of being produced to the Jury. Lord President. Mr Jeffrey, the Court have considered your objection to the reading of these papers, and they are of opinion that all of them are sufficiently proved to go to the Jury. They are of opinion that, with regard to the first one, which Hardie, the prisoner, prevented Mr Hardie, the magistrate, taking down, he must be held (the Jury will consider how far that is a right inference) to have adopted the whole contents of that paper ; for how could a person say he would spill the last drop of his blood to prevent a paper being taken down, the contents of which he does not know ? Therefore, the Court are of opinion that the prose- cutor would have been allowed to prove it by the verbal me- mory of the witness as far as it would go. Now, it appears to the Courtthat the best possible proof of his memory is his having seen a paper, which he believes to be a copy of that paper; then, if they had attempted to prove the con- tents of the original paper by his paper, while he had ad- mitted that he took down another paper, which he believed to be a copy, and they did not produce it in aid of his me- mory, his evidence could not be received ; but he took down a paper a few yards off, and that is the best evidence of the contents of the original paper ; and therefore it is a fit sub- ject to go to the Jury, and they will form such inference from it as they think the circumstances warrant. With regard to the second paper, the Court is of opinion that it is proved sufficiently to go to the Jury. In the first place, as to the possession of Lieutenant Hodgson, thi* is proved beyond question, he delivered it to his officer, Colo- nel Taylor, who kept it one night; and he swears that, iu 228 his belief, this is the same paper. Now, whether it is the identical paper or not, (if it was a manuscript, there might be more difficulty about it,) is a matter that is immaterial, if it was the identical copy which he believes it to be ; nay, further, he believes it to be the same paper, and, therefore, under these circumstances, although, if it had been a paper where you could not have a duplicate, there might have been a difference ; yet as it is a paper where there may be a du- plicate, and the witnesses swear that the contents are the same, we are of opinion it is proved sufficiently to go to the Jury for their consideration. The Address delivered in by Mr Hardie was read as follows : " Address to the Inhabitants of Great Britain and Ire- land. " Friends and Countrymen, Roused from that torpid state in which we have been sunk for so many years, we are at length compelled, from the extremity of our suf- ferings, and the contempt heaped upon our petitions for re- dress, to assert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misre- presented by designing men, would have united all ranks) have induced us to lake up arms for the redress of our common grievances. The numerous public meetings held throughout the country has demonstrated to you that the interests of all classes are the same. That the protection of the life and property of the rich man, is the interest of the poor man ; and, in return, it is the interest of the rich to protect the poor from the iron grasp of despotism ; for, when its victims are exhausted in the lower circles, there is no as- surance but that its ravages will be continued in the upper ; for, once set in motion, it will continue to move till a sue cession of victims fall. Our principles are few, and found- ed on the basis of our constitution, which were purchased with the dearest blood of our ancestors, and which we swear to transmit to posterity unsullied, or perish in the attempt. Equality of rights (not of property) is the object for which we contend, and which we consider as the only security for 229 our liberties anil lives. Let us shew to the world that we are not that lawless sanguinary rabble wluch our oppressors would persuade the higher circles we are ; but a brave and generous people, determined to be free. Liberty or Death is our motto; and we have sworn to return home in triumph, or return no more. Soldiers ! shall you, countrymen, bound by the sacred obligation of an oath to defend your country and your King from enemies, whether foreign or domestic, plunge your bayonets into the bosoms of fathers and bro- thers ; and at once sacrifice, at the shrine of military despot- ism, to the unrelenting orders of a cruel faction, those feel- ings which you hold in common with the rest of mankind? Soldiers ! turn your eyes toward Spain, and there behold the happy effects resulting from the union of soldiers and citizens. Look to that quarter, and there behold the yoke of hated despotism broke by the unanimous wish of the peo- ple and the soldiery, happily accomplished without blood- shed -, and shall you, who taught those soldiers to fight the battles of liberty, refuse to fight those of your own country ? Forbid it, Heaven! Come forward then at once, and free your country and your King from the power of those that have held them too too long in thraldom. Friends and countrymen, the eventful period is now arrived when the services of all will be required, for the forwarding an ob- ject so universally wished, and so absolutely necessary. Come forward, then, and assist those who have begun, in the completion of so arduous a task, and support the laud- able efforts which we are about to make, to replace to Bri- tons those rights consecrated to them by Magna Charta, and the Bill of Rights, and sweep from our shores that corrup- tion which has degraded us below the dignity of man. Ow- ing to the misrepresentations which have gone abroad with regard to our intentions, we think it indispensably neces- sary to declare inviolable all public and private property ; and we hereby call upon all Justices of the Peace, and all others, to suppress pillage and plunder of every description, and to endeavour to secure those guilty of such offences, that they may receive that punishment which such violation of justice demands. In the present state of affairs, and du- 230 ring the continuation of so momentous a struggle, we ear- nestly request of all to desist from their labour, from and after this day, the 1st of April, and attend wholly to the recovery of their rights; and consider it as the duty of every man, not to recommence until he is in possession of those rights which distinguishes the freeman from the slave ; viz. that of giving consent to the laws by which he is to be governed. We therefore recommend to the proprietors of public works, and all others, to stop the one, and shut up the other, until order is restored, as we will be accountable for no damages which may be sustained, and which, after this public inti- mation, they can have no claim to. And we hereby give notice to all those who shall be found carrying arms against those who intend to regenerate their country, and restore its inhabitants to their native dignity, we shall consider them as traitors to their country, and enemies to their King, and treat them as such. By order of the Committee of Organi- zation for forming a Provisional Government. Glasgow, 1st April, 1820.: Britons ! God, Justice, the wishes of all good men are with us join together, and make it one cause, and the nations of the earth shall hail the day when the standard of liberty shall be raised on its native soil." Lord Advocate. Here closes the case for the prosecu- tion, my Lord. Mr Jeffrey. May it please, your Lordships, and Gentle- men of the Jury, I rise now, Gentlemen, God knows with anxiety enough, to discharge what, however, I have always looked forward to as the least anxious part of my task. For from the moment when a sense of duty to my profession, and to the unfortunate persons whose situation has given them a claim upon that profession; and when a sense of obe- dience to the suggestions of those persons on the Bench, to whom, as a professional, and as an individual person, I owe the highest respect I say, Gentlemen, from the first mo- ment that these considerations reluctantly, and with great hesitation, prevailed with me to venture on the painful and responsible task, for which all who know the situation in which I have been placed, are aware I had so little time to 231 prepare, I had considered that task as attended, not cer- tainly with more pain than I have experienced, but as likely to involve me in greater difficulties and perplexities than I have yet had to encounter. But from the beginning I was comforted and upheld by this reflection, that at the most important stage of the proceedings, I should at last escape from the labyrinth of a law, with which, though a part of the law of our own land, I may, without shame, say, my acquaintance was very trifling ; for almost a whole century has elapsed without any person having airopportunity, prac- tically, to learn its application in this part of the island. I did trust, therefore, that however much I might be baffled or perplexed, and perhaps in some degree exposed, in struggling with a system of jurisprudence so foreign to my studies, one period of the trial would restore me to self-pos- session, and give my client some chance of benefit from the assistance a person in my profession could render him. At that period we have at last arrived ; when, escaping from all the perplexities of the law, I have to deal only with the plain unsophisticated sense, sound reason, and con- sciences of a Jury of my countrymen, and with the plain evidence of facts, upon which I humbly conceive there can be little ground for dispute. Then, Gentlemen, I may begin the short statement which I am in a condition to submit to you, by one comfortable remark, if the case holds out any thing to which that epithet can be applied ; and that is, Gentlemen, that as to what is proven, and what is not proven as to what is the state of facts to which your judgment must be applied, and upon which your verdict must proceed, I scarcely anticipate any difference as likely to arise between the opposite sides of the bar. The whole question, I apprehend, will be, what is the legal, and just, and true import of the facts that are proven ? For, after the evidence which has been just now closed, I really think it would be absurd to suppose that any doubt of the existence of the facts could remain in your minds. It is therefore, Gentlemen, as it appears to me, a question merely of the appreciation or application of evidence, and therefore eminently and peculiarly a question for the cuiui- 232 deration and the determination of a Jury; and embarrass- ed, as I have the comfort to feel it, according to my view of the case, with scarcely any portion of legal or technical dif- ficulty. But, Gentlemen, before proceeding to state, in a very few words, what the facts are which I thus hold to be proven ; and to submit to you what are the conclusions which those facts, in my humble apprehension, do warrant ; and what are the conclusions which I shall take the liberty of stating I do not think that they warrant, I think it right to begin by an observation, which, to persons of your intelligence and candour, might, I believe, be spared. Gentlemen, you will understand that I am not here to justify the conduct of the prisoner at the bar I am not here to say, that a great deal has not been proved against him, which infers blame of a very weighty and aggravated description I am not even here to pretend that crimes of a heinous nature have not been sufficiently established against him. The question of his guilt or innocence, generally, is not the question that you are now to try It is by no means necessary for that verdict, which I trust you will ultimately find yourselves at liberty to return, that you should think well of his conduct, or even that you should think that it is not deserving of the highest reprobation and censure. The question you have to try, Gentlemen, is a far narrower and more precise question and is merely, whether there has been sufficient legal, con- vincing, and clear evidence, to force you upon your oaths, in spite of the presumption for innocence that is establish- ed in every system of law in spite of the pleadings of mer- cy, which it is no less your duty to listen to, than to do jus- tice I say, Gentlemen, the question is, whether you have evidence sufficient, in spite of these considerations, to com- pel you to say, that there is no doubt that the prisoner has committed the specific and aggravated offence of High Treason. Gentlemen, great care has been taken, and very laudable pains have been bestowed, from a very early period of the history of that country from which this branch of our law (for it is our law) has. at a period comparatively late, been 233 borrowed, to define the nature and limits of the offence of High Treason. Perhaps it is owing to the novelty of the sub- ject to my understanding, and to prejudices (though I can scarcely allow it to be prejudices,) imbibed from the study of a jurisprudence of a different character, that I cannot say, for one, that those endeavours have been extremely successful. For however much this has been held out as a desirable ob- ject, and however much the eulogists of the law of England are in the habit of asserting that it has been fully attained I must say, looking into the books of the law of England on other crimes, or of proceedings as to such crimes in any other country, I am not aware of any questions of such difficulty as still adheres to the definition of some species and some kinds of Treason, according to the law of England, in its last state of perfection. But, Gentlemen, fortunately for us all, this is admitted to be a case that does not fall under that de- scription. It was stated to you in the luminous, temperate, and reasonable opening which you heard on the part of the prosecution, from the learned Lord Advocate that this, in his view, did not rank among those cases of alleged trea- sonable practices, as to the proof, or, at all events, as to the definition of which, any nice questions could be raised, or any reference to debateable authority required ; and in that I entirely concur. Gentlemen, I do not think it at all ne- cessary to trouble you with any remarks upon that exten- sion, which, something I think contrary to professions held out in the law itself, has been given to the first article of charge against this person. The leading treason, which is that to which I allude, is that of Compassing the Death of the Sovereign the definition is plain. From the most ancient times, it has been held, that without an attempt, in proximo, to take the life of that eminent and necessary Personage, there was no treason ; but any steps clearly and unequivocally tending to that calamitous result, and indicating, not merely the existence of such a wish or inten- tion, but a resolution and purpose to carry it into effect, has, in all time, been held sufficient to constitute the offence of Treason. It is not necessary that the life or person of the Sovereign should be actually assailed, to render a person lia- 234 ble for intending or plotting the death of the King : and though the principle has been carried something farther than I think it would be easy to justify, it fortunately is not necessary here to go into these, which I cannot help calling, and which the learned prosecutor himself could not help calling, constructive extensions ; because, in this case,. it appears to me that the whole facts of this case come much more appropriately under the charge of Levying War against the King in his realm, than that of intending or plotting to the destruction of his life, directly or indirectly ; at the same time, that I unequivocally admit, that a conspiracy or deter- mination to levy war against the King, when that is made out, not in the constructive way in which it sometimes is, by har- bouring designs of forcibly effecting general changes in cer- tain institutions under the King's authority ; but when it is directed to an actual change in the government, and to the conduct of that supreme magistrate, without whose co-ope- ration the government cannot be altered, and who, there- fore, must be compelled to give an acquiescence by force, or must be removed from a situation of giving resistance to the schem ; acts indicating an intention to levy war in that way, have been held, and I do not object to the construction, as amounting to sufficient evidence, or overt acts, of a pur- pose to destroy the King's life ; and, therefore, they were, antecedent to a late statute, which Las erected them into sub- stantive treasons, considered as sufficient evidence of the guilty object of aiming at the life of the King: But from the evidence laid before you, and from the view that from the preliminary statement we know is taken on the other side of that evidence, it is plain, that the case here is not entangled in such difficulties; for the charge is not only of war being determined on for such a purpose, but it is brought to the highest state of evidence, by the actual commencement of hostility waged, and war carried on ; and his Lordship did us no more than justice in saying, he did not anticipate any contradiction or dispute upon that proposition, that the actual levying and waging war within the realm, for the purpose of compelling a change jn the ad- ministration of the laws and government, by force and vio- 235 lence ; or by such force, and violence, of subverting the government altogether, and establishing some other on its ruins, would be a substantive treason, and must com- pel you to find the person against whom such acts were pro- ved, guilty of that high and fatal crime. I therefore feel very much at home as to the nature of the charge, and what is required to make it out. Gentlemen, this case loses all the perplexities from which you and I might have suffered under some aspects of such a charge, and some attempts to prove it. As it stands, it results in an ordinary case for a Jury, that of the sufficiency of, and the import of the evidence, to prove a very plain pro- position ; that proposition being, that there is evidence here, to instruct, against all presumptions to the contrary, that this individual did not only intend and conspire, but did actual- ly carry this intention into execution, by arming himself and carrying on war against the constituted authorities and regular troops of the King, for the purpose of subverting the constitution, or compelling the Sovereign to change his measures and government. Now, Gentlemen, there are two branches in this proposi- tion ; the one is, the naked question of fact, as to which, you will be prepared to hear me repeat, that I think no doubt exists ; and by affecting any doubt as to which, I feel I should deprive myself of the credit which I hope to maintain with you. I admit therefore, that my client was armed with other persons that being so armed, he was present at, and engaged, both constructively and actively, in a skirmish with the lawful forces in the pay of the King, acting, I have no doubt, in what they considered, and what probably was, their duty. Gentlemen, I rather take up the evidence at this point, which is near the end of the transaction, historically or chro- nologically speaking, than at the other extreme, and remo- ved from it by a long and great interval of time ; because I am aware, from what one has heard abroad, and which, in common with that public from which you are taken, you must have experienced, of the startling effect of what, with any but jurors, I would call the prepossessing fact, which 236 was proved to-day, which was known all over the country, ever since it was first noised and bruited about in the land. Gentlemen, it may be necessary, after having made this admission, to state to you, not on any subtlety of the law of treason not on any technical and lawyer-like distinction, which will appear at all strange or difficult for you to fol- low, but on principles which must be convincing and satis- factory to your minds, though they may not have occurred to you before your present duty required you to attend to such considerations, in the way I see you are now attending to them that an attack may be made upon the forces of the King, by an armed band of his other subjects, and the blood of both may be shed in a field of unnatural battle, and yet no Treason may be committed ; and the proof of that iact may even be no material ingredient of the treason that is here charged, and the treason which is alone sufficient to support the charge against the prisoner. The charge against the prisoner, and what was necessary to make a valid charge of treason against him, is, that he was engaged in actual hostility with the forces of his Sovereign, for the purpose y and with the intention, of compelling that Sovereign, by force of arms, to change his laws and government, or for the purpose of subverting the government altogether; lea- ving, or not leaving, the royalty, for the purpose of some fantastical and new usurpation, to be erected upon the bloody ruins of the former fabric. That, Gentlemen, and nothing else, is the charge ; and that, and nothing else than that, must be proved, before we are in a condition to consi- der this person in danger of a verdict from you, finding him guilty of the charge now exhibited against him. Gentlemen, the subjects of this realm may commit a vari- ety of offences, of a more aggravated, or a more venial na- ture, indicated or consummated, all of them, by hostility against the King's forces, and by shedding their blood ; and none of those offences can, by possibility, be ranked in the class of Treasons at all. There may be in the mind of a man, or any number of men, or at least of any moderate num- ber of men, a great hostility to a particular body of the King's troops, or perhaps to the whole array of the milita- 237 ry, from opinions, from grudges, from real or imagined wrongs or injuries, sustained at their hands They may be assaulted in revenge persons may have been detected in crimes, and led to justice arms may have been found in their houses, and confiscated, and themselves convicted and punished by military law, or military despotism ; on that account, they may attack those who wear the same uniform as those who detected them, out of revenge, and be guilty of great crimes, undoubtedly, but not of the crime of Treason. Such instances occur every day ; bands of men engaged in pretty extensive combinations, for the furtherance of unlaw- ful objects that are pretty widely pursued, in a neighbouring country. In Ireland, and in this country formerly, and not long ago, there were encounters between the King's forces and persons engaged in Smuggling; they have been familiar and common, and much blood has been shed in these occur- rences. Aggravated crimes they are, when it comes to slaughter, and great crimes when there is no slaughter; but not approaching to the verge of Treason. Other cases occur familiarly ; if persons have committed felony, and are flying from justice, if their numbers are great, the aid of the mili- tary is called in, in support of the power of the law, and if those persons resist the military and civil power united, they commit great crimes in so doing crimes fit to be punished, and regularly so, by the application of the proper laws ; but never imagined to approach to Treason, which yet, we are apt to hold, is sufficiently proved, when an attack of the King's forces is proved. Gentlemen, I have stated to you what I think you must now be convinced of, that the evidence of an actual skirmish between any set of armed individuals and a body of the king's forces, acting in the discharge of their duty, is not of itself evidence of a treasonable purpose; because it may exist, and, I believe, in the far greater number of instances in which it has occurred in this country, it has existed, where there is not the least shadow of pretext for imputing that greatest of all crimes to the persons. I believe no case is so common as that of persons who have been engaged in criminal prac- tices, and are flying from justice, before trial, or who have 238 escaped from justice, and for whose apprehension military power is properly and generally employed, the resistance of those persons to the military, acting in aid of, and along with, .the civil authorities, is not in itself a crime at all akin to the crime of Treason, but ranks under a category of its own. If homicide follows, that is a circumstance of aggravation ; but brings it no nearer to Treason than it was before. And therefore I may say, that whatever the other parts of the evidence may ultimately force you to think was the true character of what took place at Bonnymuir, the proof of what did take place there, taken by itself, is by no means suf- ficient toentitle you even to suspect theprisonerofHighTrea- son. Because, I need not observe to you, that, whenever an act is at all of an equivocal or doubtful character, it is the duty of a Jury to hold, and it is the presumption of law, that the guilt belongs to the least aggravated view of the case ; and, therefore, actual conflict with the forces of the King, although by armed men, and obstinately and desperate- ly pursued, is not evenprimajacie evidence, or presumption of a Treasonable intention : and if nothing else is proved, is not the least ground for a charge of that kind against the party, and ought to be referred to the more common occa- sion for such a lamentable occurrence. In order, there- fore, to make out this crime at all, there must be evidence, either by antecedent, or by subsequent acts, of that Treason- able purpose which is the result of the guilt, and by which, if established by acts properly distinguished as overt acts, the guilt would be complete without the actual striking, and without the actual conflict. That, no doubt, would afford an overt act, which would receive an unequivocal character from the proof of the purpose and intention. But so far from holding this transaction at Bonnymuir, which is qua- lified to strike the imagination or the feelings of the public at large, I say, so far from its being sufficient proof of a Treason, I do maintain, that the crime must be proved in your estimation, before you are entitled to consider what took place there as any material article of charge against the prisoner at all; and, therefore, so far from its being a sepa- rate act of Treason in him, it is one you need not look to 239 in order to prove the Treason ; because the treasonable purpose must be sufficiently made out by otln?r circum- stances before you are entitled to give to that affair the cha- racter of a treasonable assault, or a waging of war ; and if it be proved only as a crime which admits of a distinct nature as to punishment or guilt, it is then an indifferent matter to the guilt or innocence upon this issue of the prisoner nowr before you : And therefore, Gentlemen, not only the most material part, but, in my view of the matter, the whole of the case turns upon the other circumstances put in evidence, and upon the question, whether those do afford sufficient con- vincing proof that that armament, that that meeting with armed men which I admit to be proved, that that use of the weapons which I admit to be used, was assumed or persisted in with a treasonable purpose, that is, with a purpose by force and violence to compel an alteration in the measures of go- vernment, or to subvert the government entirely; therefore it is to this branch of the question, and to this question only, that we must address ourselves, and with this view, almost exclusively, that you will now be pleased to take into consi- deration the evidence. And here, Gentlemen, although for your information it cannot be necessary to state it, it is necessary that I should mention as a material basis of the views of argument I humbly propose to submit to you, that it is a fact too noto- rious to require any proof, and too lamentable to escape the recollection of any one, that for a long course of time ante- rior to the melancholy transaction which has this day been put in evidence before you, that class of the community to which the prisoner at the bar and his associates confessedly belong, have been subject to great sufferings and privations. I believe I may also say, that it is matter of equal notoriety, that those sufferings were, for a long course of time, al- though, unfortunately, not to the end, borne by that class of persons not only generally, but, I may say, universally, with unexampled patience; and that it is a lamentable fea- ture of this, and of many other cases of a similar, and of a different description, with which the courts of criminal juris- prudence in this country have lately been, and are still throng- 240 e<], that the result of that long period of suffering has not in the end been equally.honourable to the character of those who were subject to it, as at the first there seemed good reason to expect it might be. Gentlemen, I am sure you will not suspect me of stating this to you as any species of defence, or apology for crimes like this now charged against this prisoner, if they are proved ; or for any other species of crime that is actually committed guiltily, undoubtedly, although under the influence of such painful and deplo- rable circumstances. Undoubtedly, Gentlemen, although a man be driven to steal by excess of poverty, it is not the less theft ; and if the poverty is general, perhaps it is only the more necessary that the vengeance of the law should be let loose against his thieving ; and if you should be satisfied, as we must all in general and in a large view be satisfied, whatever we may think of any particular case, that much of disaffection, much of sedition, much of disorder and aliena- tion from their duty and allegiance, has unfortunately cha- racterized the times that lie but little behind us, though much of it must be referred, and ought in charity to be attributed, not to any sudden depravation, but to the ope- ration of circumstances of an intolerably grievous nature ; yet no lawyer, and no man, can say, that is any reason why those crimes should not be pursued, and why additional severity ought not to be employed to counteract the incite- ments and tendencies to guilt that arise naturally under such circumstances. And nothing can be more abhorrent to my thoughts than to say, that that is any ground for a Jury not to apply the law, or for those who administer the law not to give effect to its vengeance, to repress crime in the season when the example is most likely to be contagious. Gentlemen, I do not state it either for that purpose, or for the vain end of disclaiming that purpose ; but I think rele- vantly, and in a view that is entitled to your serious atten* tion, as bearing on this case, as affording the more likely, and more merciful and humane interpretation of acts, that would otherwise receive a severer construction. For if, in such a period, crimes not defensible are likely to be committed, all these acts of resistance of the military power are more 11 241 likely to occur ; and when they do occur, great care should be taken to ascertain whether they are Treason, or offences of a different nature from Treason ; and we all know, that during the distress that has prevailed, there was a plentiful and lamentable harvest of such offences, totally distinguish- able from Treason, but leading to the same acts of resistance to the police and the regular order and general force of the law in this country, which may in some cases indicate a treasonable purpose. We know, that the distresses in Glas- gow indicated themselves first by that which continued to the last, I believe their fundamental and general cause, I mean by a Combination of workmen for an increase of their wages. That is an offence punishable, and recently punish- ed, by the criminal law of this country, in transactions in which a great part of the individuals now arraigned here were directly engaged, or indirectly concerned. After a time, the discontent, the mutinous and combining spirit that ori- ginated as a mere disorder in trade,and partook of a far milder and less aggravated character than belongs to any public offence against the state, and had in the beginning nothing in it of a political offence at all, undoubtedly received addi- tional violence by imbibing some portions of political ani- mosity. Then another offence came to be combined with these dispositions, and, Gentlemen, the crime of Sedition reared its head in this formerly loyal and tranquil land. Gentlemen, the records of our criminal Courts, events that every man has heard of in every corner, have taught us how many prosecutions, how many arrests, how many alarms, were propagated by Seditious assemblies, seditious discourses, seditious libels and publications; and, Gentle- men, nothing was more natural, after these assemblies, these tumultuous meetings had become common, than that they should lead further to the commission of that which hungry multitudes are so apt to run into, pillage and plunder, and indiscriminate attack on private property. Now, Gentle- men, it is in this state of things that you are called on to find that certain persons, who went armed about the coun- try, and resisted an attempt to arrest and make prisoners of them, must necessarily, and in consequence of that act, be VOL. I. Q 242 he"kl to have been so raised, and so .armed, nnd so marching, not for the purpose of defending themselves from being brought to justice for any of the minor offences to which I have alluded, not to protect themselves in the continued ca- reer of committing those offences, but for the purpose of wa- ging War against the Government of the country, and arm- ing themselves to subvert the Constitution of the country. Gentlemen, I say in such circumstances a general view of the case would lead to the more merciful, as well as by far the more likely and probable conclusion ; and that, when so many other more natural fcnd more feasible purposes of such arming can be pointed out in the circumstances which confessedly belong to the persons accused, it will require clear and precise evidence to satisfy you that this conduct must be connected with a Treasonable purpose, and cannot be accounted for by any other circumstances of probability, such as are suggested by the real circumstances in proof. Now, Gentlemen, with a view to the evidence in particu- lar, of which I think this is the general description, let us consider to what it amounts. There has been reference made to a hand-bill, of a very abominable description; and as to which I cannot say that I feel myself called upon to dissent from the epithet that was applied to it on the part of the prosecution I think it was a Treasonable hand-bill. Al- lusion has a\*o been made to meetings of persons called Ra- dicals; and allusion has been made to expressions said to have been used by others, in the hearing of the prisoner, of a purpose or desire to obtain what they called their rights : and these things, as they have been said to be brought home to the prisoner, with some others, seem to be relied upon as sufficient proof that these suspicious, these illegal, these cri- ' minal acts, which I admit are proved against him, must ne- cessarily not only have been illegal and criminal, but also Treasonable ; and that there is evidence sufficient to force on a Jury, bound to presume every thing for the prisoner, the irresistible conviction of his guilt and absolutely to exclude us from putting any other interpretation on his conduct than that he was armed for the purpose of employing his arms to compel a change in the constitution, or to effect a subver- sion of the government and the regular establishments of the country. Gentlemen, if that hand-bill had been brought home to the prisoner at the bar, as a person concerned in its concoc- tion if any evidence had been laid before you that he had been a party, or a member of a committee for organizing a provisional government >if any expression or speech had fallen from him, deliberately uttered, advisedly and repeat- edly uttered for I think it would require that approving the tenor of that publication, with evidence that he under- stood the tenor of it when he did so approve of it, why, Gen- tlemen, I must confess that I should tremble for his fate; and in spite of my reliance on the mercy with which your justice would be tempered, I should scarcely dare to lift my eyes to ask what your justice might have been called upon to pro- nounce. But, Gentlemen, is that the case here? Is there any evidence, in the first place, such as, I confess, I ex- pected, and I think was prepared to rebut Is there any evidence that this individual had, for any course of preceding time, been engaged as an active reformer, or a meddler in politics at all? Has it been proved that he was the hearer or maker of speeches at any radical meeting, or a zealot for annual parliaments and suffrage by ballot, or any other re- form ? Has the prosecutor thought fit to go back so far as to satisfy you that, upon whatever motives he acted during these four days, those motives were even deliberately con- sidered, or formed any part of his settled opinions, or the rule of his habitual conduct ? Does he select his first victim on account of the aggravated and peculiar and prominent features of his offence, and yet is he unable to shew that he belonged to that class of persons with whom, undoubtedly, the greatest and most unexpiable guilt must rest, by whose machinations, by whose stimulating poisons, the mass of the ignorant population has been infected? Here there isno foun- dation laid for the belief of a treasonable purpose ; for that, like all other fixed purposes for which persons are to be re- sponsible with their lives, ought to be shewn not to be aban- doned after a few days, but that the mischief was ripe in the country for years before ; but there is no attempt to trace this 244 man back one step beyond the brief period during which his conduct has been put in evidence before you to-day. But, I say, while you are bound to free the prisoner, from the utter want of evidence on the point of all participation in these plots and conspiracies, and these committees, and meetings, and associations, from which this pernicious and detestable hand-bill originally emanated, I admit, if you could fasten on him the adoption of that hand-bill as his rreed, with evidence of his understanding it, however much it might be regretted that punishment could not find its way to the most guilty, it would be impossible to say sufficient had not been proved against this party. But how do we stand as to this ? Their Lordships have found that it is so proved in the circumstances of the case, as that it may and ought to be read to you ; and of course you must take it as a part of the evidence laid before you ; yet their Lordships neither have, nor can be imagined to have found, anything more. They have not found that that hand-bill is a paper, for the contents of which my client is responsible ; they have not found that there is any evidence by which his approba- tion of it is sealed ; indeed, it does not belong to the Court so to find it belongs to You, and you only, to find that ; and their Lordships never intended to prejudice that ques- tion. Now, Gentlemen, what is the evidence? I arn un- willing to resume any part of the discussion, which you heard lately laid before the Court, or to ask you to form a different opinion upon any of the points upon which the opi- nion of their Lordships has been delivered to you; and, therefore, I shall not enter into the question of how far there is sufficient evidence to satisfy you that the two hand- bills, with which it is said that the prisoner at the bar has been connected, were actually of the tenor of the documents upon the table, which have been sent to you as evidence; but I do submit to you, in one word, that neither of them are suffi- ciently proved for you to proceed upon. That is an esta- blished fact, in proceeding to consider the import of the evidence laid before you, though I am bound to bow to the decision which lias been formed, that they have been so far proved as to entitle you to form the conclusion which 245 shall appear to you to be deducible from them; I say, there is no legal evidence that the hand-bill now produced by Mr Hardie was of the same identical tenor with the hand-bill of which a copy was seen by him ; it is not proved to be of the same tenor as that the prisoner was found hearing read to him : you are the judges of that. I may admit, as a rule of law, that though it is sufficiently proved to send it to a Jury, it is not sufficiently proved to entitle a person to say, from recollection, that it is an exact copy of that paper, which alone can affect the prisoner. The only paper which can at all touch the prisoner, is that which he is proved to have personally heard read. Now the contents of that paper are not in evidence before you, nor any copy compared with it, of the identity of that paper with others. I submit, in a court of criminal justice, you cannot hold identity to be esta- blished by the circumstance that it struck the witness as being the same. That is not legal evidence of identity; and you cannot take it upon you to touch the life of a fellow-creature, upon grounds so precarious. Then, again, what is the fact with regard to this hand- bill? Why, Hardie, the prisoner at the bar, is proved, I think sufficiently proved, to have heard a part of it read but only a part of it; and unquestionably there is not the least evidence that he heard the part that followed that. to which the witness spoke, and necessarily confined his de- position, or that he either himself read, or heard the subse- quent part read at all. But supposing it were ever so clear that he had heard it read four times over from beginning to end, deliberately and distinctly, is it possible to maintain, that hearing a seditious paper read, or reading a seditious paper in the public streets, where all passers by must read it, is enough to involve the party who reads it in a seditious approbation of its contents? You, and thousands of loyal subjects, may have read it under the same circumstances. His reading a part is absolutely nothing, as to connecting him with the whole of it, or iixing him with its tenor, as any exponent of his sentiments or opinions. But then we are told that his conversation with the re- spectable person who was naturally struck with horror and 246 indignation at what he read of it, his interference with that person in his attempts to pull it down, and the passionate and unbecoming language which he used to him, are evi- dence to a jury, in a case of blood, that he approved of that paper, and adopted it as his own ; and that you are entitled to impute to him the blame of the anonymous hand-bill, stuck up in the streets for all who ran to read. This, I con- fess, is a stretch I should hardly expect from any one ; and without appealing to that great law of reason, humanity, and justice, which we know to rule and predominate in the cri^ ininal Courts, that the milder interpretation is to be adopt- ed ; and it is only where you are compelled to adopt that which imports guilt, that you arc entitled to adopt it, In other words, the prisoner is to remain in presumption of innocence, until you have clear and overbearing evidence of guilt; and any thing else, though it may justify suspi- cion, is not, on any account, to be assumed as evidence by a Jury, situated as you are, charged with the life of a fellow, creature, where all sense, eyes, and minds, must be shut to suspicions. I say I need not appeal to these considerations here, because, considering the description of person, the rank of life, and the temper, you may suppose this man seditious, discontented, and mutinous, suffering his share of privations, and feeling more than .his share of excite- ments and provocations to these things \ and looking at him in that way, is it necessary to suppose the adoption of that bill to explain what took place with regard to it ? What took place ? He was with thirty other people gaping round this watch-box, and listening to the elocution of some cleverer fellow, who was delivering its contents to a circle of wonder- ing auditors and spectators ; and in the midst of this to all men very interesting read jng, a person comes up and pushes through the crowd. In an idle, discontented, probably not very moral or correct person, you know how craving the mind is for stimulants of this kind ; all tales of wonder, and all tales of crimes, are gladly sought after by that idle part of the population, whose passions being blunted on one hand, and excited on the other, are most easily led to that sort of delight which the exhibition of horrors supplies to 247 their uncultivated minds. In the midst of this wonderful story, a grave person comes forward, and insists on inter- rupting the orator ; and before he gets half way through reading the paper, he insists on tearing it down and carry- ing it away. 1 do not say it was becoming or right ; I do not say it was not very wrong ; I do not say it was not sus- picious, to use the language this witness recollects the priso- ner to have used : but the substance of it is, he asks what right have you to interfere ? and he is answered, I am a Ma- gistrate. Now, we all know, that in the towns of this country the name of Magistrate is almost exclusively bestowed on the Borough Magistrates ; and though, in the law, the Jus- tices of the Peace are Magistrates, that is not the common, acceptation of the word, especially in the royal burghs. There is a fat gentleman in a black coat calls himself a Ma- gistrate ; he is supposed to be a Dean of Guild, or a Bailie, or something having the badge of authority ; therefore [ explain the rudeness, the insolence, and violence of speech, when he said, where is your warrant ? As Mr Hardie had no gold chain, the prisoner naturally thought he was usurping the character ; he never saw his person before, and therefore, his appeal was unsuccessful, from the fact that, he did not see in that circle any person known to him. There was a mistake, in short, in the use of the word Ma- gistrate by this person, certainly entitled tp that appella- tion, which would appear a deception to the mind of a Glas- gow weaver, who would say, I know all the Magistrates of Glasgow, and this is not one of them. And, after all, is it to be conceived that this man, hearing those fine phrases, the common slang of patriotism, all the usual .verbiage, by which a man's head is apt to be bewildered, would follow, from a blundering reader, all that was given out from this public desk in this manner, and have an exact perception of the tenor of the work ? He had heard enough, however, to excite his imagination, as all bombast does with the igno- rant, and he thought it fine and flashy, and was desirous to hear it out; and I ask, which of us, if we had seen such a performance, would not have wished to read the whole of it ? which of us would not have put it in our pockets, and read 248 it word by word in the conclaves of our associates, just as Hardie and his associates were reading it then ? There were words, the Doctor said, between Mr Hardie the Magis- trate and some of the other people; and there were, it ap- pears from Mr Hardie, but he says he cannot recollect more than he stated, that he insisted on taking the paper down ; and this rude person, in all likelihood, not having a coinr mand of temper, was angry that he should be interrupted, and said, I will be damned if you take it down. You shall take my life's blood sooner. That was, no doubt, a violent .observation ; but if a man is once defied and comes to the heat of blood arising from scuffling, we all know the inde T corum to which he may be hurried ; and I ask, whether, under these circumstances, you can hold that that language can in common sense, to say nothing of humanity or law, be received by you as a presumption though you have no- thing to do with presumptions, and ought to discard them with resentment from your minds can that language afford any sort of evidence that he knew more than he was then hearing, or that he approved of, or understood, what he ac- tually heard ? I do submit there is a complete failure of the evidence on this point, and that it would be the most tre- mendous of all constructions of evidence, worse than any construction of treason ever attempted, to convict a person of a capital crime on such a foundation as this. Gentlemen, I say there is not a particle of evidence with regard to his adoption or approbation of that paper, and that every thing that occurred, not only may be explained consistently with his not approving, and not understanding even that part which he heard, but in common sense, consi- dering his condition of life, it is by far the most natural presumption ; and if the favour were the other way, you would naturally and necessarily adopt it : And therefore I cannot too much caution you in the outset against allow- ing your minds to be poisoned by listening to any sugges- tions of this kind, in viewing that legal, and pure, di- rect, or circumstantial evidence, by which only you can find a fellow-creature guilty of the tremendous offence charged against this unhappy man to-day. 249 Then of the other hand-bills I have still less to say, be- fore I dismiss them altogether. You have heard it proved that this unfortunate man was on the road, not laudably, I fear, nor innocently employed, but I say, not proved to be trea- sonably employed, along with five or six other persons, when they met this serjeant, whom you saw examined to-day; and there a person, who I think it is admitted was not the prisoner, did pull out of his pocket, alter some conversa- tion, a parcel of papers, and gave the serjeant one of then) ; which, it is said, has been proved to be another copy of the same hand-bill. I say, in the first place, that this is not proved ; that there is a fatal and unsuppliable link in the chain of evidence, by which it ought to be connected with the person who gave it to Cook ; and, therefore, if that person had been the prisoner, it would not have been a crime, because it is not proved to be the same with the one now produced. Evidence, from recollection of similarity of tenor, is not receivable evidence in any crime, much less in the highest crime, where the proof is most difficult, and required to be most complete. But, Gentlemen, supposing the bill to be traced from the hand of the prisoner to Cook, how is that better evidence than the other of his ap- probation of its contents ? I put it to you not as persons who are bound to listen to quibbles and legal distinctions, but I put it to you on the principles of common sense, as applied to evidence of simple facts, whether the delivery of a folded paper by one man shall amount to evidence against another person then present, that he has a know- ledge of the contents of that paper, and approves of its contents and circulation. This person takes a bunch of them out of his pocket, and gives one folded up; can any thing be so hazardous and full of peril to all men who may be in evil company, if they are to be answer- able, not only for what they see done and approve of, but for what may be done, in one sense, in their presence, but which is not done at all with reference to them ? It is the knowledge of the contents of the paper that con- stitutes the whole guilt ; and though the paper is handed over in the presence of another, you have nothing to found the presumption that a person merely present, of whom it 250 is not proved that he saw the inside of it, is to be loaded with the whole sealed up volume of guilt, which is not un- sealed in his presence for an instant. Gentlemen, the maxim of law, that a man, if he sees a thing done in his presence without disavowing it, is liable for the thing so done, is a hard maxim in some circumstances. Some men from fear, and others from inattention, may be present at words spo- ken and acts done, which they ought to dissent from and disavow ; and though they have had the purpose and incli- nation so to do, may, from inattention or stupidity, be pre- vented from doing it. I say, it is hard they should still be made jointly responsible with the actor or speaker; but if they are to be answerable for sealed papers delivered over in their presence, there is no end to the injustice that may be done, nor any limit to the anomalies and perversions of law that may follow. A plot against the man himself, a trea- sonable or murderous scheme against a man may be hand- ed over to a person in his presence, and he may thus be held accessary to his own condemnation what limit is there to that presumption ? 1 ask you if you think there is any evidence to fasten on the prisoner the guilt of that paper, or any intention to approve of the paper, by the circumstance of a folded copy of it being passed from the pocket of one man to that of another, who carries it away ? and yet that is the whole evidence with regard to his connection with this paper, with which, it is said, he is chargeable, and of which, it is said, there is evidence of his approbation and adoption. If you think that is evi- dence, I own I should be less inclined to congratulate the country on the institution of which you form a part, and less willing to trust my client to your decision ; but I will not believe it is possible ; and, I am persuaded, that you never will hold that this hand-bill is to be brought against this individual, farther than as proof that it was posted in two places in Glasgow, and that he had read it before he left the place ; but that he took any step connected with it is a matter of the loosest inference, and is not ren- dered even probable by any of the circumstances given in evidence to-day. '1 hen, Gentlemen, what are the other circumstances ? f 251 really am not aware that there is any of any formidable or considerable nature, except the statement contained in the prisoner's own declarations, that have been read to you ; and, Gentlemen, it is always most painful, I believe, to the prosecutors, and I am sure it is to a Jury, when any material and necessary part of a man's guilt is brought out by his own, as it must turn out, most imprudent, and perhaps in- accurate expressions and declarations. Gentlemen, such declarations and admissions are usu- ally receivable evidence; but they are far indeed from being conclusive evidence, and I rather think 1 may say, that unless where they connect facts that are proved by ex- trinsic evidence, though they may be allowable, it is hardly adviseable to rely much on them. Why, Gen- tlemen, the most solemn and complete of all admissions, I believe, is hardly ever stated as evidence, and certainly never considered, or dwelt upon in evidence, in the case of a trial for crime I mean the confession of the prisoner himself, in the presence of the Jury or the Court, although deliberately made, if ultimately, and in time, he withdraws and retracts it. Such is the humanity of our law, that it allows a plea of Guilty which has l>een put in, upon re-con, sideration to be withdrawn ; and the fact of that plea ha- ving been entered, though the most solemn admission of guilt that can well be imagined, 1 believe, in practice is ne- ver urged or referred to as evidence of guilt at all, in sum- ming up the proof; yet of all confessions it is the most com- plete, and ought to be of the most unequivocal and decisive authority. 1 state that to you as an ordinary illustration ; but you must be aware how repugnant it is to all those feel- ings with which the administration of justice ought to be tempered, and without which it would scarcely be justice for human creatures, that the elements of a man's condemnation, who does not intend to plead guilty, should in any case be extracted or construed out of statements that are obtained from him before a Magistrate, or otherwise. But, Gentlemen, one would apply this caution with infi- nitely greater, and in thrs case, I think, with decisive strength, to that part, which is the only part of the declaration, that 252 I think is material, in which an avowal of the purpose of this armament is taken down. It is said he armed him- self in order to obtain a reform in Parliament, or some such tiling, or with a view to obtain a reform in Parliament. Now, Gentlemen, considering how these examinations are taken, I think it cannot be held that these were the precise words the prisoner uttered ; and in a matter not of mtked fact, but of opinion, and relating to notions of a political kind, I scarcely think it allowable to give a statement of the objects of a man in such concise terms as these, and then to catch at such expressions as decisive of guilt, which would not otherwise settle on him : For while the declara- tions as to matter of fact may in general be safely received, the expression of opinions or motives, which are always imperfectly given, and are always modified and retracted on farther investigation, ought not to be clapped down in two lines, and no questions asked in explanation. I impute no blame here to the magistrates. I am sure they act most conscientiously ; but that is not the mode of proceeding in this country. What the expressions are I really do not care, but they plainly admit of an explanation, and an explanation with the statement of which I shall conclude the general observations I have to make to you, and nearly finish all I have to say. Gentlemen, I have very little doubt you may think it probable that the arming of these men, and their marching from Glasgow, had some connection with politics and with reform, and I do not think more can be inferred from the statement in the declaration ; but there is a wide step to be taken from that to an admission, which the subsequent and preceding parts of the declaration negative, and you can ne- ver suppose that he intended to contradict himself, that he intended no violence to any body, and that, in point of fact, the speculations about Annual Parliaments and Universal Suffrage, were afterwards explained to be what he had heard other people say ; but he had hardly any opinion on the sub- ject himself, not being in the habit of attending much to such subjects, which 1 think you are bound, in the absence of evi- dence to the contrary, to believe was the case. Now, Gentle- men, very gi k vcus ollbiiccs may be committed by persons en- 253 gaged in the pursuit of such a reform, as appears to have been in favour with this person and his associates; but, Gentlemen, I think a great proportion of this, and all that is necessary to suppose here, may be supposed, without in- volving him in the guilt of Treason. The statement he gives is substantially, thfit he went out, having no purpose of hurting any body, to bring in other people who were friend- ]y to the cause to Glasgow, and that he took arms for this and no other purpose. I am aware this is treading on dan- gerous ground ; but the case would be different in that view of it from the view the prosecutor takes here ; if it was merely determined to hold a meeting of a tumultuous na- ture, to have a petition drawn up at a great radical meeting, and determined also, that if the military, or police, come to disperse them, they would use force to prevent their disper- sion. This is the worst view of it : and this will not amount to Treason. But all that the declaration says is, that they intended to go and tell the people in the country that the cause was going on, and if they would come and make more noise, and make it appear that it is the general wish that such reform should be granted, we think it will be granted ; and that the prisoner therefore went to get a large number to petition, and went armed on this recruiting service to prevent the interference of the police. Gentlemen, this is a high crime: but it is not Treason, undoubtedly not the Treason laid here; for it is a very dif- ferent thing from a person arming himself, on purpose, by active force, to overwhelm the government. If a man arms to protect himself, it may be an illegal act, if the act in which he is so to be protected is in itself illegal. But if the resolutions, and the petitions, and the speeches of the con- vocation of persons had been carried through, they would only have amounted to the crime of sedition ; and if upon any attack made upon them they had resisted, that would . have been only a riot, not a treasonable waging of war. I admit fully, at the same time, that there is no distinction between a person saying I am not armed to overthrow the government by force, but only to defend myself against those who prevent my overthrowing it peaceably. But if I am only collecting meetings without proof of their intending any such overthrow, that is not Treason, and resisting dis- persion there is not Treason. I do not go, therefore, upon the shadow of a distinction between active and passive force; but there must be evidence that it was intended to commit that which was Treason ; and resisting the dispersion of a radi- cal or seditious meeting is not Treason. If smugglers are pursued by soldiers, who are employed to arrest them, it is a riot to resist, but it is not the crime with which you and I have to do to-night ; although it is resisting lawful autho- rity, although it is waging war against the King's forces in the performance of their duty, in preventing the execution of a criminal and improper purpose then a-foot, and then following out by the persons engaged in it. In short, where the purpose is not strictly treasonable the mere assisting in maintaining that purpose by force, although a heinous oP- fence, although involving the party in great crime, is not Treason, unless the purpose was a treasonable purpose, which it would be impossible to say in many cases it would be, though they were regularly armed. Then, Gentlemen, I have only to bring you to the ulti- mate view of the case, and see how it corresponds with the supposition of its being Treason, or the supposition I sub- mit, that it was merely for the protection of an illegal and criminal, but not a treasonable purpose. Why, Gentlemen, I do not say that the inadequacy of the force is of itself evi- dence, where there is clear proof of a treasonable purpose, or an answer to the proof that a levying of war took place. Desperate causes will have desperate votaries and advocates, and persons very often appear devoid of that understand- ing, by which alone their conduct could be ultimately for- midable ; but when you see them going with arms to pro- tect themselves, and with such numbers as to render the idea of waging war absurd, the inadequacy of their force is then a most decisive and important feature in the cause. Gentlemen, it is very remarkable that there is no evidence of their having addressed any body to join them in sub- verting the constitution ; there is no evidence of their ap- plying to any body to enable them to compel a change of 11 255 government ; there is no evidence of their having adopted any of the other purposes in that hand-bill, or of its coming from the mouth of my client, or any person in his com- pany. They took arms on the road, and had conversations about their rights, but they never said they were to work out their rights by force, or to apply their arms but for their own protection. It is supposed they went out in obedience to this proclamation, and in particular the part which re- lates to the soldiers ; and yet you are asked to believe that that party which was to seduce them were the actual ag- gressors in this hopeless conflict. But what do they do, according to the statement of the other party ? They march, avoiding all interference with those whom they want to overthrow, by sneaking along the canal ; and when their object is frustrated, they go to a desolate part of the moor, where there was nobody to conquer, but where they go to hide till they could steal back again to the city fiom which they had come. Does this shew that they intended to com- pel a change of government ? or is it not referable to the mi- nor offence of going out to escort a body of reformers to what may be called illegal meetings, where seditious speech- es were to be made, and absurd, ridiculous, and pernicious resolutions come to ? What reason have you to suppose but that they were armed against the police, which had threatened their dispersion ; which would have been a riot, but certainly would not have amounted to Treason. Gentlemen, that is the way they were found ; and let us see a little more particularly how this unhappy catastrophe was brought about. They met a person en the road, and one of them asked for his arms ; they were not very reso- lute, for they allowed the man to walk away unhurt in his person after a little parley. Then they encounter a hussar; they stop him, and one man asks for his arms: that was stated to you distinctly not to have been the prisoner at the bar j it was stated to be a person who was in the battle, who he thinks escaped, and is not in custody at all. Now, there is no proof of that being done for a common purpose, for another man of the party interposed, and said you shall not take his arms, and it was carried so ; and 256 therefore you are not to attribute the proposed act of one as a common act in which the others are involved, when it appears clearly that they dissented. They have a collo- ' quy with him, and he counterfeits an affection for their principles, and sympathizes with them for those distresses which he sees are the probable cause of their melancholy speculation, which would be ludicrous, if it were not for its example, and the consequences it has brought on its au- thors. The hand-bill is then given to Cook, and word is carried to the troop at Kilsyth that armed men are parading the country, and a party is sent out. I do not mean to ar- raign the conduct of those persons ; but I think there is ra- ther scanty evidence to warrant their taking these men pri- soners. I have no doubt they acted honourably, and with use to the public ; but it was without authority, and all that had been seen were six armed men. I think that was too equivo- cal to justify a war on the part of the military ; but I do not dwell on that. The important thing is, that this troop sought the party, and the party did not mean to seek the troop. It is evident that their object was escape, and the object of the troop was apprehension and seizure. That is pretty manifest from the way in which they came forward ; and therefore, Gentlemen, what position were these men placed in, acting, I think, wickedly and foolishly in the highest degree : but I do submit to you, from their conduct in this stage of the business, as well as in all the former, not proved to have been acting in furtherance of a treason- able object. It is clear, beyond all possibility of dispute, that when the military came in sight, their acting was in self-defence, and not an invasion of the troops to overthrow the go- vernment. It was in order plainly, and for no other pur- pose than to prevent their apprehension and seizure by a body of armed men, that they made resistance. From the panic which the sight of these soldiers threw them into, it is quite plain, and no man of common sense can view it otherwise, that this was not a voluntary aggression on their part, but was a mere resistance of persons in an attempt to apprehend them for what they had before done; and if 257 they had not before committed Treason, the whole conflict on the field is referable to the mere fear of arrest by ques- tionable authority. Nor can it be denied, that men coming up at a hand gallop, and brandishing their swords, might naturally inspire them with fear, that instant violence was intended, and that they had no resource but in a desperate re- sistance though, if they had known who commanded that troop, they might have been assured, from his aspect, they would have met with protection and quarter, which all their violence could not induce him to refuse. But, Gentlemen, they did not think so; and in their rank of life, and with their feelings, and their diet of whiskey and porter, which was the diet of the preceding night, it is not to be wonder- ed at that they should act with violence. But that is not the point ; the point is, whether the history of that onset affords any evidence of a treasonable purpose, if it is not proved antecedently by preceding acts ? And I say, without a shadow of doubt on that point, that if you are not satis- fied that they were guilty of High Treason before, that was not an act of High Treason. It must have been consum- mated before, if that act is in furtherance of it ; nay, if it is held to have existed before, that was not an additional act of Treason ; and if you think it existed before, it is only upon the overt acts, constituting that previous treason, that you can now convict. You cannot believe the actual conflict to have been undertaken from a treasonable mo- tive; their motive was to all human sense, and every man must see and feel it, a desperate attempt of a parcel of men surrounded, "to escape from apprehension for their former conduct; and if they had been treasonably em- ployed before, their acting then was merely resisting their apprehension, a case which cannot be stated as an act of Treason ; but if they had been guilty only of a minor offence, and if any thing else was the amount of their guilt, and they went out to protect themselves from arrest, it may be illegal and criminal, but it is not treasonable. I say, the resistance to this alarming arrest, and the resisting the offi- cers of justice, is not an act of Treason; and therefore, Gentlemen, great as the popular aggravation is that the VOL. I. R 258 case receives from this act, I end my statement of the evi- dence by repeating, that unless you are satisfied from the other parts of the case, that there are sufficient indications of a treasonable purpose, you can receive no evidence of that Treason from the events of that field, and that the Treason, if it existed, must have been complete before, and could not be created then. Gentlemen, I have said a great deal more than I am afraid you have had the patience to listen to, or than with more preparation, or a juster application of the evidence, I should have thought it necessary to trouble you with. I dare say, tedious as my address has been, many matters of importance have been omitted ; but I cannot at this time tax my strength or your patience by any recapitulations of the evidence, or any glancing at the heads I should have submitted. I leave this prisoner and this case in your hands ; confident that you will require no suggestion of mine, to remember not mere- ly the general deficiency of evidence to which I have allu- ded repeatedly, but that you cannot forget or be inattentive to the pleadings of that inward advocate, who not only does plead in the hearts of all humane and just and generous men, but whom the law recognizes as a legal and weighty advo- cate, even in questions of strict legal construction, and in all questions, especially where the actual truth of human motives, and the true state of that unsearchable heart, the ways and movements of which can never be completely dis- closed to any human eye, are a part of the materials on which a verdict of condemnation or acquittal, in a case of life and death, must depend. The facts are clear and indis- putableI have not disputed them I trust I have not mis- represented them. The whole question is as to the purpose and Intention from which those acts proceeded, and which they were intended to accomplish and fulfil, if they had been allowed to be persevered in. This is a question, therefore, as to motives and designs ; the determination of which, though difficult, Juries are obliged to undertake ; and to which, if they proceed divested of party feelings, and with a merciful inclination towards the accused, I am satisfied they not go wrong. I say, if along with a zeal for the con- 259 scientious discharge of their duty, they take with them those humane and merciful considerations, for the sake of which the establishment of trial by Jury, and the committal of the life of a fellow-creature to the care of twelve simple and un- instructed men, has been so honoured and admired, the re- sult must be satisfactory to all. To attend to those considera- tions, Gentlemen, is not only your privilege, but your duty ; and it is merely because it is so, that trial by Jury stands so high, and is canonized as the greatest of all blessings, and that without which, the most perfect laws would deviate into harshness and cruelty. Gentlemen, I cannot but think, that now that the alarm, and the immediate danger is over in the country, we shall have a fairer chance than at an earlier period; you will look more to the merciful considerations that may induce you to be satisfied with the exposure already made, and to construe what is equivocal with that favourable leaning and bias to- wards mercy which the law expects and requires at your hands, and from the consciousness of having exercised which, to your latest days, you will receive more pleasure than if you should act a Roman part, and decide, on a nice point of evidence, to sacrifice these unfortunate individuals, who are already, by a forfeiture of esteem and respect, to be considered as the victims of those deeper and more wicked designers whom the law has not yet overtaken. I think your feelings will be different, if, in after times, you pass by their dwellings, and instead of meeting with the tearful coun- tenances of their orphans and widows, you there find the men themselves reclaimed from the disaffection with which they may have been tainted, redeemed from that peril on the brink of which they now stand, and enabled, by their refor- mation, to return to the exercise of an industry which is beginning to be better rewarded, and to bring up their children and their children's children to admire those Courts and those Juries who have administered the law in mercy, and have acquitted, not indeed from a general imputation of guilt, nor stamping on them any badge or signal of ap- probation, but merely negativing the precise charge which is before YOU, and taking advantage of the flexible nature of 260 the charge on which the conviction is demanded, refusing that conviction which might perhaps be reasonably granted, but which would be now far more wisely and generously and beneficially withheld. Lord President. Have you any witnesses to call? Mr Jeffrey. The witnesses were chiefly to character, and to some circumstances in the earlier history of the party, which do not now appear to us, from the way the evidence has been conducted by the Crown, to be material to the defence, and rather than prolong a trial which has al- ready occupied so much time, we do not call for it. Lord President. Judge for yourself, do not talk of time. Mr Jeffrey.* We are sensible of your Lordship's indul- gence ; but we will not call them. Lord President. Does any other counsel of the prisoner wish to say any thing ? Mr Hunter. No, my Lord. REPLY. Mr Solicitor-General. May it please your Lordships, Gentlemen of the Jury, I have now to claim a short period of your attention, while I discharge the concluding duty of the public prosecutor, a task which I rise to fulfil, not so much from any conviction of its necessity in a case which, in all its bearings, is so perfectly clear, and which, in the proof, has been so conclusively established, as to obey the ordinary practice in cases of this kind. Gentlemen, before proceeding to call your attention to what is the proper subject before you, by adverting dis- tinctly to the law which you are sworn to administer, and to the proof, which it is a still more important part of your duty to take into your consideration in reference to that law, I trust I may be permitted, in a single word, to advert to that very powerful appeal with which the learned counsel, 261 whose appearance here is honourable both to himself and his profession, concluded his address; that appeal was made to your mercy, and it was made in terms, which, if it has had an impression on you in any degree similar to that which it made upon me, could not pass unregarded. But I conceive it to be my duly to recal to your recollection, that the pre- rogative of mercy lies not with you. If in this case mercy is fit to be shewn, you know where the constitution of the country, which you are bound to observe, has lodged that sacred prerogative. It is surely unnecessary for me to remind you, that that prerogative is neither intrusted to you nor to the Court. The Court is sworn to administer the law in- flexibly as it is written, and you are sworn to administer the law as it applies to the facts proved before you, with a simi- larly inflexible regard to the obligations of the oath under which you are assembled ; and of this you may be assured, that if mercy is fit to be shewn, it will not be refused in that quarter to which alone the appeal can be made. Gentlemen, passing from all topics of this nature, you are aware that the indictment upon which the prisoner at the bar is brought before you, contains against him a charge of Trea- son. That Treason, especially when divested of the technical terms in which it is expressed in the indictment, resolves, in the first place, into a charge of compassing and imagining the death of the King; secondly, into a charge of levying war against the King, within his realm ; and, in the third place, into a charge of compassing and imagining, conspi- ring and devising, to levy war for the purpose of compelling his Majesty to change his measures, or for the purpose of compelling either House of Parliament to change their mea- sures, and thus by force to accomplish an alteration of the constitution of the kingdom. Gentlemen, it has been explained to you frequently in the course of this day's proceedings, that the law of Treason, which is now embodied into the law of Scotland, is origi- nally derived from a certain English statute of considerable antiquity ; but ancient as it is, and constructively extended, as has been alleged upon the other side, it is a statute which in its terms is as clear and as precise as any part of the law 262 of either kingdom, by which crimes are defined and assigned for punishment ; and if any construction has been applied to it, I think I could pledge myself to shew, to the satisfac- tion of any man, that that construction, so far from being a severe construction to the subject, is a construction which has been applied humanely in subservience to the great prin- ciples for which it was passed, confining its operation to those cases which, strictly and properly, and in the con- templation of common sense, fall within the great objects of that department of the law. The terms of the statute I shall beg leave to read to you. It is a statute of Edward the Third, and, in so far as re- gards the question before you, is in the following terms : " Whereas divers opinions have been before this time in what case Treason shall be said, and in what not The King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter follow- eth ; that is to say, when a man doth compass or imagine the death of our Lord the King, or if a man do levy war against our said Lord the King in his realms, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be proveably attainted of open deed by the people of their condition." That is the definition of the two Treasons to which your attention is to be directed in what I am now to submit to you. From the terms in which this statute is expressed, it would appear to be directed in terms to no other object but the preservation of the person of the King. If the strict terms are taken, it is directed solely to protect the person of the King, and to protect him from such attempts qs necessarily tend towards his personal destruction. Now, Gentlemen, you will observe (and I shall state it very briefly to you) how the whole purpose of protecting the integrity of the constitution is accomplished by these precise and simple terms. It is only necessary to advert to the structure of the constitution to be satisfied on that point. The King, as you all know, constitutes in his person one of the three estates of the kingdom ; and you are equally aware that it is an in- "umbcnt duty of that branch of the constitution, the Exc- 263 cutive, to whom the whole active and executive power is committed, to protect all the other estates, and all the con- stitutional establishments of the kingdom, from any violent or treasonable alteration. And therefore it is, you will see, that it is impossible to accomplish the violent subversion of any branch of the constitution, without, in the first place, overcoming the third, or kingly estate, and without doing that which is levying war against the kingly estate, without subjecting it to force and restraint, and entirely abolishing its exercise. From this principle it has been held, that the Treason of levying war against the King, although capable of being stated as a separate and distinct Treason, is nevertheless considered as an overt act, in furtherance of that other and primary Treason, compassing and imagining the death of the King; in respect, that it is impossible to levy war against the King, without necessarily and inevitably bringing, not merely the kingly office, but the kingly person, into hazard and danger. If it were necessary in the present instance, there could be no difficulty in confining the charge, and in clearly esta- blishing the charge, now brought against the prisoner, under the first of these Treasons, compassing and imagining the death of the King ; but I do not mean to depart from the view of the charge which was taken by the public prosecu- tor in his opening speech, and it will be quite sufficient, therefore, to confine your attention to that Treason which consists in levying war against the King, and it is principal- ly, if not solely, to that view of the case that I am now to direct my observations. Gentlemen, what is levying war against the King ? All the authorities and referring you to take the law not from me, but from the Court, by whom you are afterwards to be directed, I shall speak very generally upon this point all the authorities concur in stating, that there are two points in this matter chiefly to be considered. In the first place, whether there has been assembled an armed multitude a multitude not armed with all the regularity of well appoint- ed war but a multitude deriving confidence from their numbers, and armed in any way with hostile weapons, such 264 as are sufficient in their apprehension to commence that system of operations which constitutes the levying war. The next point, in considering this Treason, is, with what design, for the accomplishment of what purpose, is that multitude assembled, and has that multitude so provided itself with arms? These are the points to which the learned counsel on the other side has chiefly directed himself; although I could not help thinking, that he shewed much greater dexterity in withdrawing your minds from the proper subject befoi'e you, than in giving you much assistance on the law ; and for the best of all reasons, because if he had done so, it would have exposed the naked, undisguised, and undisguisable nature of that Treason, which, I am confidently to contend before you, has been brought home, beyond the possibility of doubt, to the prisoner now at the bar. Upon the first of these points, whether there was here assembled a considerable and a violent multitude, who had provided themselves \vith arms, who had arrayed themselves in a warlike manner, who had actually proceeded to use those arms in the way which has been so clearly proved to you by a course of evidence that need not be repeated up- on one and all of these points, it is impossible for any human understanding, that has bestowed the slightest attention upon the proceedings which have been detailed in your presence, to entertain the remotest hesitation or doubt. It is a point which has been yielded with great discretion upon the other side ; and it is a point upon which I should be ashamed to say one word more to you. Therefore, Gentlemen, you are brought to a short, and, as I apprehend it, as clear a point as ever was submitted to the consideration of any jury; the point is one which is common, not to the charge of Treason only, but to all crimes that can by possibility be brought under the consideration of courts and juries. It is brought to this point, what was the design of the parties with what design did they proceed in the way in which they are proved to have proceeded was their design an innocent design, a laudable design ? Nay, even taking it to be a criminal design, was it one of private import was it for the vindication of any 15 265 private right, peculiar to any one of the individuals who were there engaged was it for the satisfaction of any pri- vate grudge was it for the inflicting of any private revenge that all these proceedings, these blood-thirsty proceedings, were pursued ? That is the question which you must lay to your conscience; and I am persuaded, when you give a conscientious attention to the evidence, it is utterly impos- sible, as 1 said before, for you, or for any man, to entertain the most remote vestige of doubt. Gentlemen, it is not necessary that the public design, supposing I shall be successful in shewing they had a public design, it is not necessary that the publicdesign should have been the immediate destruction of the King it is not neces- sary that it should have been to accomplish any particular restraint or invasion of the kingly office ; but if the design was one to accomplish a change in the constitution, be it of any description whatever if it were in the merest trifle in the constitution if it were to accomplish the slightest alte- ration in the sacred form of the constitution and by force, for it was by force, and by nothing else, if the design existed at all, it brings one and all of them within the sphere and the range, and within the awful penalties of the crime which is now laid to their charge. Gentlemen, if there had been nothing more in the case but that the armed party, so arrayed and marshalled and prepared, with whom the prisoner was joined, had been found in close and hardy conflict with the troops of his Majesty, I do not scruple to say, that it lay upon them to prove that they were not levying war against his Majesty. Notwithstanding all that has been said about the presump- tions in favour of innocence, presumptions against which, in their fair and legal import, I should be the last person in the world to argue, I say, nevertheless, that persons may be placed in such a situation as to cast upon them the whole burthen of exculpation ; it is not necessary that I should plead this case to that degree, but I do not scruple to lay down that proposition as being founded both in reason and in law. Gentlemen, if a man is seen to run another through the body to blow out his brains, is any thing more to be required of the public prosecutor than the proof of that fact ? 266 Is he bound to prove that this murder, as it is in its first ap- pearance, this act of homicide, to call it by an abstract term, is not committed in self-defence, is not committed under the influence of insanity, or by accident ? No such thing. The duty of the public prosecutor is completed by proving the fact of homicide; and that fact being proved, turns over upon the prisoner the whole duty of his own exculpation. Just so, Gentlemen, I apply the principle here. And if a party of men, in regular array of war, are found in conflict with the troops of the King, I say it lies upon them to prove that their purpose was not that which, from necessity, pro- claimed by the circumstances in which the parties are found, is the inference which every man must draw from the facts so proved. Gentlemen, there is a passage in the work of a lawyer who is of the highest authority upon this subject, and who cer- tainly cannot be accused of not giving all due attention, and all due regard, to the condition of prisoners, and to the pro- tection of the subject, in matter of crimes, which warrants the principle to which I have adverted. In order to under- stand properly the passage which I am about to read, I may state to you, that there is such a thing as what is called a constructive levying of war, which is not an overt act of the treason of compassing the King's death ; that is, if an assem- bly of people, arrayed in a warlike manner, proceed to the accomplishment of any general alteration in the constitution, or establishments of the country, even without coming into conflict with the troops of the King, they are held to fall under the situation of levying war against the King, because they are doing that which it is the duty of the kingly office to prevent them from doing. Such is termed a constructive levying of war. Now, when is it that this constructive levy- ing of war comes to rise up to the situation of a direct levy- ing of war ? I quote from Hales* Pleas of the Crown, vol. I. p. 123., a work of the highest authority. " But such a levying of war may in process of time rise into a direct war against the King ; as if the King send his forces to suppress them, and they fight the King's forces ; and then it may be an overt act to prove the compassing of the King's death." 267 In like manner it is laid down in another authority, of no less respect in the law, (I quote now from Foster, 218) " An assembly armed and arrayed in a warlike manner, for any treasonable purpose, is bellum levatum, though not 'helium percussum;" that is, it is war levied, although no blood has been shed, although the campaign has not been begun, al- though no part of the country has been possessed by rebels, if the preparation for war is so far complete, if they are in possession of arms, and arrayed in a warlike manner. This authority adds, ** Attacking the King's forces in opposition to his authority, upon a march, or in quarters, isl evying war against the King." And I shall have occasion to ad- vert to this again afterwards, when I come to notice a part of the argument on the other side, in which it seemed to be stated, that, unless it could be established that Treason had preceded the battle or the affray of Bonnymuir, Treason could not be made out on that fact ; and it seemed to be maintained, that before that fact took place, there was not the remotest ground for saying Treason had been commit- ted. But to the immediate purpose which I have in hand, " Attacking the King's forces, in opposition to his autho- rity, upon a march, or in quarters, is levying war against the King." There then follows a qualification, which, in truth, comprehends, in the space of three or four lines, the bulk of the argument upon the other side j <( but if, upon a sudden quarrel, from some affront given or taken, the neighbour- hood should rise and drive the forces out of their quarters, that would be a great misdemeanour, and if death should ensue, it may be felony in the assailants, but it will not be Treason, because there was no intention against the King's person and government." Now, the import of that authority is, that if the King's forces, in opposition to the King's authority, were attacked upon a march or in their quarters, such a proceeding, by presumption of law, would be levying war against the King, and it makes out the proposition to which I have been en- deavouring thus briefly, and perhaps imperfectly, to direct your attention, that if there had been no other evidence in 268 the case but this attack upon the King's forces, it would have authorized me to demand a verdict at your hands upon that branch of the indictment which is laid against the prisoner. But, Gentlemen, there is a vast deal more evidence, to which it is impossible for any man to shut his eyes ; and if once your eyes are open to it, I must protest for one that I cannot discover upon what ground the conclusion can be avoided. I say, the connection of the prisoner with the hand-bills, both the one and the other of those hand-bills, which are so reduced into evidence as to authorize me to read them to you, is brought home in such a way that it is impossible to escape from them; and I shall call your atten- tion shortly to the situation of each of these hand-bills. But, in the first place, I may say a word or two as to their contents; and whether you take the first paragraph which is contained in them, or whetheryou take that part of them which peculiarly relates to the Address to the Soldiers, I hold both the one and the other to import an equally treasonable pur- pose. It says, v Friends and countrymen, roused from that torpid state in which we have been sunk for so many years, we are at length compelled, from the extremity of our sufferings, and the contempt heaped upon our petitions for redress, to assert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misrepresented by designing men, would have united all ranks) have induced us to take up arms for the redress of our common grievances^ The numerous public meetings held throughout the country, has demonstrated to you that the interests of all classes are the same. That the protection of the life and property of the rich man is the interest of the poor man, and in return, it is the interest of the rich to protect the poor from the iron grasp of despotism ; for when its victims are exhausted in the lower circles, there is no assurance but that its ra- vages will be continued in the upper ; for, once set in motion, it will continue to move till a succession of victims fall. Our principles are few, and founded on the basis of our consti- tution, which were purchased with the dearest blood of our ancestors, and which we swear to transmit to posterity un- sullied, or perish in the attempt ; equality of rights (not of 269 property) is the object for which we contend, and which we consider as the only security for our liberties and lives ; let us shew to the world that we are not that lawless sanguinary rabble which our oppressors would persuade the higher circles we are, but a brave and generous people, determined to be free. Liberty or death is our motto, and we have sworn to return home in triumph, or return no more." That is the first and the last sentence of the commencement of this Address. Now, Gentlemen, can any one of you doubt, that here is a distinct proclamation of a public purpose, a distinct proclamation of an intention of redressing their common grievances, by taking up arms ? What do all authorities concur in stating the law to be as applicable to such attempts ? " Insurrections, in order to throw down all inclosures, to alter the established law, or change religion, to enhance the price of all labour, to open all prisons, all risings, in order to effect these innovations of a public and general concern, by an armed force, are, in construction of law, High Treason, within the clause of le- vying war ; for, though they are not levelled at the person of the King, they are against his Royal Majesty; and, be- sides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property, and all government too, by numbers and by armed force. Insurrections like- wise for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation li- ving here under the protection of the King, or for the re- formation of real or imaginary evils of a public nature, and in which the insurgents have no special interest, risings to effect these ends by force and numbers, are, by construc- tion of law, within the clause of levying war, for they are levelled at the King's Crown and Royal dignity." Gentlemen, if they are so by construction of law, it is by a construction of law, as I hinted to you in the beginning, equally favourable to the subject, and necessary for the pro- tection of the State, because, by that construction, the law does, in favour of the subject, exclude and relieve him from the penalties of Treason in those cases in which the war is levied for a private purpose; and, therefore, although the offence might fall under the strict letter, it is in consequence 270 of that predominant construction that it does not fall within the purpose or intendment of the statute ; and, on the other hand, while the law thus provides for the safety of the sub- ject in that respect, it provides for the safety of the State in the other respect, by holding it to be a levying war where force is adopted' to effect any change in the constitution, which it is the duty of the executive to prevent. I take it for granted that there cannot be two construc- tions or opinions about the import of the address which I have read. It is a treasonable address ; it does call upon the subjects to take up arms for a treasonable purpose; and, therefore, the question is, whether that treasonable ad- dress is brought home in any degree to the prisoner at the bar, and the associates with whom he was connected. Be- cause I state to you, in point of law, and I state it under the correction of the Court, that if this treasonable Address is brought home to any one of those with whom the prisoner was associated in arms, though he may not be a principal in the matter, he becomes a principal in consequence of be- ing an accessory and engaged in it; and I state that as a principle of law on which no earthly doubt can be enter- tained. Ontheimportantsubjectoftheprisoner'sknowledgeof,and connection with the Address, I crave you to go back to the evidence of Mr Hardie, the Justice, and his testimony must be quite fresh in your mind. He was in Duke-street in the morning of the 2d of April j he was attracted to a particular place by a crowd of persons assembled around a watch-box; he went up to see what those parties were reading ; he him- self read part of the address that was there posted up; he heard part of it read aloud by one of the persons assembled ; it was read aloud in such a manner that Mr Hardie, and all that were thereabout, must have heard it, and clearly did hear it; there cannot be a doubt of it. In that party was Hardie, the prisoner. Mr Hardie, the Justice, attempted to pull down that address ; he was forcibly prevented from doing so ; and he was so forcibly prevented by the prisoner at the bar ; that is proved beyond all doubt ; and the ques- tion for you is, was or was not the prisoner at the bar cog- nizant ofi and acquainted with the contents of that Address, 271 which he so protected by force, which he so aided in pub- lishing, by protecting it in the place where it was posted up for publication. It was in the course of being publicly read when Mr Harclie came up, and another witness, M'Pherson, who was looking out of his window directly opposite, saw the parties reading it, so that there cannot be a doubt in any body's mind, that that Address was read and known in all its contents by the prisoner at the bar. It must not be overlooked, that Mr Hardie, the Justice, when he proceeded to pull it down, told the prisoner that it was a treasonable and seditious Address, and that it was his duty to pull it down. The answer made to that by' the pri- soner was, that he would lose the last drop of his blood be- fore he permitted it to be pulled down. Mr Hardie read part of it himself. At a short distance from where the Address was posted, there was another of a similar appearance fixed upon one of the public wells, containing a similar address at the top, a similar appearance throughout, containing in the heart of it a passage identically the same with that which was read from the watch-box; and the case for your con- sideration is, whether there is room for any reasonable doubt, any such doubt as ought to be permitted to interfere with the clear course of law, whether there can exist in your minds, acting conscientiously, the slightest doubt, that the contents of the Address posted up on the well were the same as the contents of that on the watch-box, of which the pri- soner was cognizant ? That is a question for your consider- ation. I have stated the view I have taken upon it, a view upon which I entertain no doubt ; but I leave it entirely for your own determination. You are now to consider what was the justification made to this part of the case, viz. that it was no more a guilty act in the prisoner than it would have been in any other in- dividual, who, hurried there by a vulgar and overruling cu- riosity, was reading this like any other bloody story, any other tragedy, any other fearful tale posted on the walls, and that his interference was merely to prevent this natural curiosity from being disappointed, by reading the whole right out. If there had been no more than this in the case, there might have been something to be said, perhaps, though I 272 do not admit that it could have availed much, because, if there had been no more in this case, I should submit this was an act of publication of the Address, inciting the sub- jects to rebellion, and that it would have been an overt act under the first count of this indictment. But the prisoner is still more fatally and actively connect- ed with this Address, because he was found in arms after- wards ; he is found the same day, or the next morning, in arms. Gentlemen, I call on you to join these circumstances to- gether, and I say, if you find a man thus protecting the pub- lication of this address, declaring that he would, at the ha- zard of his life, prevent it from being pulled down and de- stroyed, when you find the same individual joined in arms with those who are in possession of the Address, and when you immediately afterwards find the same individual in the active accomplishment of the purposes proclaimed and en- forced in that Address, I say all this is more than sufficient to bring him within the condition of being guilty of a clear overt act of Treason j inasmuch as that Address does give evidence of the design and character of the whole proceed- ing, in which, in furtherance of it, he is afterwards engaged. Now, there is another hand-bill which you will find to be in identical terms with the one of which I have been now speaking ; and how was that address or hand-bill obtained ? It appears that when Cook, the hussar, then a private, now a serjeant, was on his way from Stirling to Kilsyth, he fell in with six armed men upon the road in that number was Hardie in that number also was Baird and it appeared that Hardie was dressing them by the left ; he had formed them into line across the road, and he was dressing them in a military manner by the left. Gentlemen, is it possible to doubt that Hardie, the prisoner, is thus intimately con- nected and associated with, and participating in, what these men were about ? Can you doubt he was a principal or ac- cessory, or both ? Now, I say, if that hand-bill or Address had been found in the pocket of any one of those indivi- duals, and if that other distinct act had not been done in the presence of Hardie by some one handing it over in his presence, if it had been found in their pockets when they 273 were apprehended, it would be clear and competent evidence against Hurdle, and against all those individuals, and you would be bound to look at it as furnishing evidence of the design and character of that warlike meeting in which they were engaged. But it does not end there ; it is not hid in the pockets of one of these persons; it is not found afterwards, and taken from his person after apprehension ; because, in the presence of Hardie, it is delivered from a large parcel under his eye-sight, by one of the men so under his charge, and therefore under his cognizance and presumed direction it is given to the soldier whose evidence on that subject is now before you. Gentlemen, I cannot suppose that you can have any doubt so far as I have now gone. It is impossible for ingenuity to avoid the conclusion from all these circumstances. A doubt, however, has been attempted to be thrown upon the identity of the paper so delivered, and the paper which was exhibited in Court, and which has been permitted to be read in evi dence before you ; and you will be pleased to remark the course, and history, and fate of that paper. It was kept carefully in the possession of Cook, and delivered to his of- ficer, Lieutenant Hodgson ; it was immediately afterwards returned to Cook ; it was carried carefully by Cook, and thereafter given to Lieutenant Hodgson. Cook read it, and stated its substance ; Lieutenant Hodgson read it, and was equally clear of its substance and contents. It was de- livered by Lieutenant Hodgson to Colonel Taylor. And thus it was, no doubt, out of Lieutenant Hodgson's posses- sion for the brief space of one night, and you are called on to believe that Colonel Taylor might have delivered to this person a different paper from that which he had received the night before. Gentlemen, that is a most irrational and absurd conclusion, and I cannot suppose any intelligent Juryman would give a moment's credit to the doubt there attempted to be suggested. But Lieutenant Hodgson tells you he read it before and since, and he tells you that he is perfectly sa- tisfied, from the contents of it, that it is the very same pa- per; he says, not merely from its contents, but his expres- sions are exceedingly remarkable j he says he received a VOL. i; s 274 hand-bill from Cook, that it was out of his hands with Co- lonel Taylor for one night ; but the contents are the same, the signature is the same at the bottom of it, the commence- ment of the address is the same, and the whole appearance is the same. NOWJ if we had been identifying any thing else any material substance whatever, and not a piece of paper containing a printed address there could not have been the least doubt. In this case you have, in addition to the precise similarity or identity of appearance, the evidence of similarity or identity of contents. I leave this part of the case, therefore, in the conviction, not only that you are satisfied that this address is sufficiently identified, but that, if you are satisfied of that, you must still more clearly be satisfied of this also, that it is brought home clearly to the cognizance and knowledge of the prisoner and his party, to enable you to take it as connected with the proceedings in which he was engaged ; and if you do take it as connected with the pro- ceedings in which he was engaged, it is impossible to hesitate as to the nature and character of the crime of which he is guilty. But this does not conclude the evidence of the general object and purpose of the prisoner and his associates, because I must remind you of the conversation which took place with that very distinct witness, Mr Cook, the Serjeant. He ask- ed them what they wanted ; (he saw them armed.) What was their answer ? They said they were in search of their rights, as every honest man should be. How were they in search of their rights ? or what were the rights of which they were in search ? Were they in search of their rights as honest men generally go in search of their rights ? Had they not arms in their hands ? Is that the way in which honest men and loyal subjects go in search of their rights ? But what were the rights they were in search of? Was it a pri- vate right they were in search of? Was it a private wrong they were seeking to redress, or a private object they were endeavouring to obtain ? I cannot allow myself to suppose you could be deceived upon this point ; and, therefore, the evidence of Cook, respecting this declaration, which they made to him on the road, in the course of conversation, too, wherein they appear to have thought they had met a man 275 having fellow-feelings towards them, and in which they be- trayed what they were about, establishes that they had taken up arms for the redress of those grievances which, in the Address, they state the whole country had been oppressed with. If you are satisfied on this point, you cannot enter- tain a doubt as to the verdict which it is your duty to re- turn. Then you have the evidence of the other witnesses to add to the case. And, last of all, you have the evidence of his own declara- tions. Gentlemen, I do not mean to read that declaration over again to you ; but I state to you, notwithstanding what was urged against its reception, that it is not only a kind of evidence which the law of England, now made our law, al- lows, but which the daily law of Scotland, acted upon and enforced by you a hundred times in the course of your lives, allows. Jt is a kind of evidence which the law of Scotland, as well as the law of England, properly, naturally, and just- ly, places the utmost reliance upon, against prisoners who are brought here to answer for their crimes. I do not mean to read now that part of the evidence which is contained in the first part of the declaration- it is left une- quivocal it states generally that their object was to accom- plish an alteration of the constitution, a restitution of their rights, which they explained to be universal suffrage, an- nual parliaments, and election by ballot; and if that is not an alteration of the constitution, or rather a total abolition of the constitution, I am at a loss to know what can be so characterized. After all this evidence, clear and unequivocal as it must be admitted to be, who can doubt as to the treasonable na- ture of the purpose by which the prisoner and his associates were actuated ? This being established, nothing remains about which any dispute can exist. It has been earnestly maintained, that the conflict with the King's troops did not constitute Treason, and cannot be stated as an overt act of Treason ; and that if there was Treason at all, it must have been completed at some earlier stage of their proceedings. My answer to this view of the case is short, simple, and conclusive. I contend that the Treason was completed be- 276 fore the conflict with the King's troops, of which I need not repeat to you the details. The crime had arrived at its full measure of legal and moral consummation by the assembling in arms. But I contend further, that their conflict with the Hussars and Yeomanry was nothing more than a natural and necessary continuation of the active proceedings for- merly begun ; and that the accomplishment of their treason- able design, and their personal safety, were equally involved in the success of that contest. Gentlemen, I have detained you longer than I intended, and longer perhaps than it was fit in the circumstances of so clear a case. I should have thought I might have much sooner taken leave of the case by stating to you generally, that if, in the consideration of the whole evidence, you are satisfied in your consciences, that the persons who thus are admitted and proved to have been in the act of levying war, had no public purpose in view, had it not in view to accom- plish a general redress of their grievances, or some alterations in the constituted establishments of the country, you would give them the benefit of an acquittal. On the other hand, if you are impressed with those conclusions which the evi- dence so unequivocally warrants, and which I have endea- voured to enforce upon you, you have no other alternative but to find a verdict of guilty. If you can bring your minds to be satisfied that here was some private purpose of private revenge, some riot for a private and exclusive object, if you can view the case in that way, which I should deeply regret for the sake of the law and the constitution, then you ought and must give your verdict in favour of the prisoner. I leave the case with you. The public prosecutor must be satisfied that his duty is completely done by throwing a cri- minal on a Jury of the country ; and having thus done his duty, he leaves the question, without fear or further concern, in your hands, and to your determination. Summing up. Lord President. Gentlemen of the Jury, It is now my duty to sum up the evidence in this case, and to make to you such observations, in point of law and fact, as, 277 in my humble opinion, may be of use in guiding you to a just verdict upon this case ; and, Gentlemen, I need not remind you that it is your duty now to act under the sacred oath that you have taken, of a true deliverance to make be- tween our Sovereign Lord the King and the prisoner at the bar, and a true verdict to give according to the evidence. Gentlemen, I shall at this hour of the night, and that you may have your faculties as unimpaired as possible for your part of the duty, endeavour to be as short as I can in the exposition of the law and the summing up of the facts. Gentlemen, the Counsel on both sides admitted to you, and common sense will tell you, that from whatever source you take the law, you are not to take it, and cannot safely take it, from the Counsel upon either side. They have a duty to perform, which is, for each of them to make the best of the case that they can ; and above all, it is the duty of the Counsel for the prisoner to get him acquitted, if it be in the power of eloquence to do so. This, at least, I may say, in distinction between what you have heard from the opposite Counsel, that the law upon the one side at least was supported by some authorities, which were read to you, while the law that was given you upon the part of the prisoner was the prisoner's law alone ; for as to its coming from Mr Jeffrey, except that it was clothed with more eloquence than the prisoner could have given it as an exposition of the law, it is no better than if the prisoner had stated it himself. Neither, Gentlemen, in taking the law from me, are you at liberty to consider what the law of Treason ought to be in this country, or what it ought to be generally and speculatively in any country. The crime of Treason in every country can be nothing but an arbitra- ry and statutory crime ; for every government has a right to prescribe the nature of the allegiance due by its subjects to its sovereign, in whatever hands the sovereignty is placed; and every nation has a right, by its legislative authority, to declare what the measure of allegiance shall be, and what breach of that allegiance shall be Treason against that state. It stands to reason that it must be so it cannot be otherwise. It is not with regard to Treason as with regard to murder 278 or robbery. It is not written in the law of God or in our hearts ; we can take it only from the statutes. Now, Gentlemen, the law of Treason with which we have to do, I think it is admitted, is to be found in the Statute- book of England ; and it is asked, what have we gained by it in this part of the island ? We have gained immeasurably by it ; for, by the law of Scotland, down to the Union, (whether the humanity of modern times would have per- mitted it to continue to modern times, I cannot say,) but by the law of Scotland torture might have been used ; but, af- ter that Revolution which placed this family on the throne, our claim of right declared torture to be unlawful, without evidence, in ordinary crimes ; but in this crime, if it had been tried the day after the Revolution, the Public Prosecu- tor would have been entitled to apply torture to extort con- fession from the prisoner. I say, therefore, by the adoption of the English law of Treason, and the form of trial, though Jess on the form of trial, upon the whole, this country has gained an immeasurable advantage. Gentlemen, the foundation and basis of the law of Trea- son, and it has been the substance to the present moment, is to be found in the statute of Edward the Third, which declares it to be Treason, " if a man doth compass and ima- "gine the death of our Lord the King; and, secondly, that " it is Treason if a man do levy war against our Sovereign " Lord the King within his realm." That is the law of Treason ; and we can take it, and read it, and receive it, from no other quarter. Gentlemen, the statute of Edward the Third has been explained, I can hardly say extended ; but it has been ex- plained and rendered more perspicuous by a statute passed in the 36th of our late most gracious Sovereign, which was at first temporary, but which has been made perpetual by another statute passed in the 57th year of the late king, by which it is declared not only to be Treason to imagine and compass the death of the King, but it is Treason " to com- " pass or imagine, invent, intend, or devise death or de- " struction, or any bodily harm, to our Sovereign Lord the " King; and, further, it is declared to be Treason to com- 13 279 " pass or imagine, invent, devise, or intend to levy war " against the King, in order to compel him to change his " measures or councils, or to overawe or constrain either or " both Houses of Parliament." That is the law of Treason, and it is neither a severe nor an unjust law. As to compass- ing and imagining the death of the King, it would be severe indeed, if the compassing and imagining was to be punished as Treason, when confined to the breast and to the naked intention of the party ; but that is not the law, for the law adds, as to compassing and imagining the death of the King, " if the person accused shall thereof be provably attainted of ' open deed by people of his condition ;" that is to say, according to modern interpretation, if his intention against the life of the King be manifested by some act or circum- stance clearly indicating the traitorous purpose of his heart. Now, Gentlemen, this criminal intention is just what is at the bottom of all criminal jurisprudence; it is only carried one degree, and but a slight degree, further in the case of the King than it is in any ordinary crime. When a man kills another, he is not convicted or punished merely be- cause he has killed him, but because it will be presumed, if he does not prove the contrary, that he has killed him with a murderous intention ; that, no doubt, will be presumed from the mere fact of killing, but the prisoner is entitled to prove otherwise ; and if ne do prove otherwise, thoughhe has killed a person he is not guilty of murder. The only distinction between other crimes and Treason is this, that in the last the criminal intention is punished before it has arrived at its final and actual completion, and this the law has enacted, and wisely enacted, for the public safety, well knowing that the life of the King is in reality the safety and security of the peace of the country ; for I need not state to you the inevitable consequences, and the horrors and dis- turbances which in all probability, nay, certainly, would fol- low any successful attempt against the life of the King. But, Gentlemen, it does not appear to me to be exceed- ingly necessary that we should trouble ourselves much with that branch of the law of Treason, because the Prosecutor told you, and his evidence went to that, that he relied on the pther species of Treason contained in one of the county 280 that of levying war against the King, or that of compassing anil imagining, intending, devising, and inventing, the le- vying war against the King, with an intent to compel him to change his measures and councils, or to overawe or re- strain one or both Houses of Parliament. That is the spe- cies of Treason we arc now to consider, which you will find laid down, in the second count of the indictment, levying war, and the fourth count, compassing, imagining, invent- ing, devising, and intending to levy war against our Sove- reign Lord the King within his realms, in order, by force and constraint, to compel him, to change his measures and councils. The second and fourth counts of the indictment, the one levying war, and the other compassing to levy war, therefore, Gentlemen, are the species of Treason to which you will confine your attention ; and I state to you, that it is the law, that, in order to constitute a levying of war against the King, it is neither the number engaged, nor the force employed, nor the species of weapon with which they may be armed, that will constitute the overt act of Treason. To prove such levying of war, it is the purpose and intention, the object which they have in view, which congregates and assembles them together, which gives them the impulse in their arming and in their rising it is that which constitutes Treason, and distinguishes the crime from that of riot, or any other rising for any private purpose that can be imagined ; and the law is positive, and it has been so laid down by all our writers, and found by judges and juries again and again, that if a rising and insurrection be for a public purpose, to resist the King's authority, to compel him to do, or to re- frain from doing, what it is part of his prerogative to do or not to do as he thinks proper ; if it be to compel him to change his measures and councils, it amounts to Treason. If the purpose be of a general nature, not connected with the private grievances of individuals, it is Treason ; for example, if the people of any particular town were to rise to compel the magistrates to liberate a person in a particular gaol for any private affection or association with him, that would not be Treason, though a high crime, and it might be resisted by force. That would not be Treason, because it was not a public general purpose it was a purpose connected only 281 with the private views which the inhabitants of that parti- cular town had. Accordingly, in the case of the Porteous mob, after due deliberation, it was held not to be Treason, and the indictments were only laid as for a riot. In the same way, if the people of a particular town, or of a parti- cular parish, having a right, or thinking they have a right, of pasturage over a particular common, saw certain proprie- tors in the neighbourhood making inclosures on the common, and were to rise in a tumultuous body, with arms in their hands, and by force and fear pull down those inclosures, or compel the persons who had made them to take them down, that would not be Treason, that would be nothing but riot, because it is a mere private and local purpose which they had in view. But, on the other hand, it is just as undoubted, and has been so found and laid down by all authorities, that if the people were to rise in different parts of the country, to pull down or to throw open all prisons, and to liberate all prisoners; if the people were to take it into their heads that no commons should be inclosed, even by the authority of Parliament, and that they would pull them all down, that would be a resistance of the King's authority as joined with that of the legislature; that would be a public purpose; and a rising to effectuate that purpose, I state positively, on the authority of the law-books, is a positive and an overt act of Treason ; therefore, I repeat it again, it is the object which the persons rising in arms have in view, it is their purpose which constitutes Treason or not Treason, according as it is a general purpose common to the community at large, or a local purpose in a few individuals. That, Gentlemen, is un- doubtedly the law of the land. I have stated to you the au- thority from which alone you can take it; it is not what the Counsel on either side may state it is not what the prisoner may wish it is not what his Counsel may eloquently set forth it is what the law has declared, and which it alone can declare; for nothing but the law of this land, and every other land, can declare what shall be Treason against the Sovereign of that land. Gentlemen, this being the law of the land, let us now ap- ply ourselves to the evidence before us, and consider whe- ther there be, as against this prisoner, any evidence of his 282 rising in arms and levying war against the King, for any such public and general purpose. Gentlemen, the evidence commences with that of John Kennie, who was called, in point of form, to prove that this attack upon the King's forces was made in the county of Stirling; because, unless an overt act of Treason is proved within the county in which the indictment is found, the prosecutor is not at liberty to bring evidence of any Treason in another county ; but if once an overt act is proved in the county, then the prosecutor is at liberty to bring evidence of Treason committed in other counties also. If it were not so, it seems to me that cases of the most atro- cious Treason could not be proved ; for example, where an army was marching from county to county and defeating the King's forces, it is plain the full extent of that Treason could be proved nowhere; because, if in the county of Stirling a Treasonable rising occurred, and this Treason afterwards gpread from one end of the country to the other, and could only be proved in Stirling, the full extent of the conspiracy never could be known. That witness was brought for that purpose, but I shall not begin with him, but take up his evidence in the natural or- der of events and the natural order of events is the evidence of Mr Hardie, a Justice of the Peace. Mr Hardie, the Justice, swears to you, that he lived in Duke Street, Glasgow, that he had been three years an acting Magi- strate, that he was in Duke Street about half-past eight o'clock on Sunday morning, the second of April, when his attention was attracted by a crowd of people on the south side of the street ; he saw the prisoner in the crowd, the crowd standing before ; he saw them, and went up, and the prisoner was in the crowd ; they were all looking at a pla- card ppsted upon a watch-box ; one man was reading it aloud, so that all the crowd could hear; and the witness ha- ving looked over it, and followed him, he saw that he read it faithfully. He says that it was read so that the prisoner could also hear it. The witness pressed through the crowd to take it down, but he was prevented by the prisoner and others. The prisoner seized him and hustled him off the pavement, having seized him by the collar. That he then told him he was a Magistrate ; that the proclamation or ad- 283 dress was treasonable and most improper, and ought not to be posted up. The prisoner (when he said he was a Magi- strate) said, ' Where is your authority ?" The witness had not his authority, but he told the prisoner that there must be plenty of people in the crowd who knew he was a Magistrate, though, at the same time, he says he did not know any of them. The prisoner said, before he would permit the wit- ness to take down that paper, he would part with the last drop of his blood. This was after the second attempt to take down the paper, in which he was not successful ; he had not personal strength enough. The prisoner seized him again by clasping both the witness's arms within his, and he hus- tled him off the pavement. He made no further effort. He says he would certainly have taken down that paper, but for the prevention or interruption which he received from the prisoner and the other persons concerned with him : That he left the spot, finding it impracticable to do so. He has seen the prisoner at Stirling twice since his confinement. He had never seen him before that day. He has not the least doubt of the prisoner being the person of whom he has spoken. Witness did not read the whole of that address ; a certain portion of it was read aloud by the person who was reading at the time he approached the crowd. The witness followed him through a part of it. In two or three minutes after he left the crowd, he saw another address that was post- ed up against a pump well, about four or five feet high, which he took down, and read it afterwards, and which he has had in his possession ever since. On having read it, and compared those parts of it which he remembered having read before, he swears that both the copies both the one the prisoner pre- Tented his taking down, and the other, did contain the par- ticular passage addressed to the soldiers, which I will pre- sently call your attention to. Both copies contained the pas- sage read by the person in the presence and hearing of the prisoner. He produces his copy and reads that paragraph. The person reading that paragraph was stopped by the wit- ness's exertion to get towards the place to take it down. The address which he produces is the same which he got from the well. Some person appeared to have attempted to take it down before, as a fragment was torn off the corner. The 284 title is the same, and the paragraph read is the same, as that which was against the watch-box, and which was read amongst those persons. Then he talks of the great differ- ence there was in the appearance of Glasgow, and the ap- pearance of the people before and after this placard. Now, Gentlemen, look at the indictment, in which you will find that hand-bill engrossed verbatim ; look at it, and read it attentively, and if ever there was Treason launched from the pen or press of this country, that paper is a Trea- sonable composition. Now, Gentlemen, you will observe that the prisoner and others were looking at this Address, and hearing it read. Before Mr Hardie came up the crowd were standing there; they did not gather together simultaneously along with him ; but it was their standing and looking at the paper, and hear- ing it read, that attracted his attention, and led him to ad- vance towards them. Now, Gentlemen, what are the six or eight words imme- diately preceding that paragraph, which Mr Hardie swears he himself heard read in the presence of the prisoner ? The immediate preceding words are, " Liberty or death is our motto, and we have sworn to return in triumph, or to re- turn no more." Now, Gentlemen, is it possible for you to suppose, I do not talk of presumption, but 1 wish I could in my own mind see a shadow of ground for your presuming, that those six or eight words immediately preceding that paragraph regarding the soldiers, which Mr Hardie heard read, had not been read before to the prisoner, or by him- self ? if you can in charity, or in mercy, believe that, I have no objection with God and your conscience be it. I shall only say one word upon that appeal to your mercy which was made with such eloquence, that if, beyond a cer- tain extent, you listen to the plea of mercy in the face of evidence and your oath, you are guilty of neither more nor less than wilful and corrupt perjury; to a certain extent, indeed, you may give way to mercy, you are authorized to give way to mercy, and the law requires it of you, and mercy requires that you should listen to her dictates. If the evidence be doubtful, then to be sure you will lean to the side of mercy ; but as to leaning to mercy in the face 285 of evidence, if Juries are to adopt that principle of acting, and to listen to appeals to their passions such as you heard this night, and to words instead of facts, there will indeed be a revolution in our government, for no people under the sun could submit to have justice administered by such a tribunal. It would go further than any thing else to over- throw our happy constitution, if Juries were turned into implements to gratify their own passions, or the appeals to their passions made by others. You are bound to give a verdict according to the evidence, leaning to mercy only where the evidence is doubtful. And, Gentlemen, if you do and can feel a doubt as to the prisoner at the bar being fully aware of the whole contents of this Address, then to be sure you will find BO ; because, being in doubt, you will lean to the side of mercy. But, with regard at least to a part of the Address, it is impossible to doubt. It is proved to have been read to the prisoner by the person who was reading; it is not left to conjecture whether he was privy to that part of it part of it was read to him, and not the least criminal part of it that part addressed to the soldiers, which you will read when you will retire, calling on them to rise in mutiny to their employers, and to join the prisoner and his associates in the vindication and assertion of their rights. Therefore, Gentlemen, here is an Address posted up, calling upon the people to rise for a public purpose, stating that liberty or death was their motto, and that they were never to return home except they returned in triumph ; calling upon the people to rise, as it is said, for the assertion of their rights. That day, and the next day, and the day after, it is sworn to you by a witness whom I shall presently come to, that he saw the prisoner at the bar walking idly in the streets of Glasgow, mixed with other bands of idle men, exactly obeying the terms of that proclamation never to work again till they had accomplished their purpose. In the first place, I must state to you what this prisoner did to Mr Hardie. He positively prevented him taking down this address, and Mr Hardie positively swears that the prisoner was the most prominent of the party in preventing his taking it down. Now, I state to you in law, without the possibility that you can doubt it, because common sense tells us the same thing, that with regard to every person who may have had an opportunity of reading that proclamation which the prisoner prevented Mr Hardie from taking down, after he so prevented him, it was a new publication, it is just the same as if he had posted up another ; for where is the dif- ference between a man who posts up one copy, and another man who prevents it being taken down, so that all in future may read it; the guilt is the same, and, therefore, that was a republication of it to the whole inhabitants of the city of Glasgow. Then, Gentlemen, comes Mr Stirling, the surgeon. He recognizes the prisoner ; saw him in Duke Street. Mr Hardie was then in the act of taking down one of those O papers that was posted on the watch-box. Mr Hardie first of all attempted to snatch it down with his hand, and did not succeed ; he afterwards tried to take it down with the point of his umbrella, but was prevented by the prisoner, who caught hold of him by the waist and pushed him off the pavement. There were twenty or thirty people round the prisoner, who did not assist him, but some of them ap- peared friendly to him. One spoke in his behalf, and said, he supposed there was no ill contained in the paper. The prisoner wanted to know for what reason Mr Hardie wanted to take it down, and what authority he had for doing so ; to which Mr Hardie replied, that he was a magistrate, and that it was a treasonable paper. Now, Gentlemen, let me call your attention for one mo- ment to a fact materially rested on by the prisoner, the doubt that the prisoner might have entertained as to the authority of Mr Hardie to take down this Address, whether he was a magistrate of Glasgow or a justice of the peace. If he had neither been justice, magistrate, or constable, but the humblest individual in Glasgow, he was justified and bound to tear down that paper, and all persons were guilty of an illegal act who resisted an individual in taking down that paper ; and, therefore, it is of no consequence whether the prisoner knew he was a magistrate of the city or of the county, for, if he was the lowest individual, he was equal- ly bound to tear down that paper as any magistrate could possibly be. 287 Then he goes on to say the prisoner asked his authority ; and he answered, that he was a magistrate, and the paper contained seditious matter. He saw the prisoner after that frequently on the Monday, on the Sunday afternoon, and on the Wednesday morning, in different streets in Glas- gow, with a number of people with him, quite idle. Then he tells you that there was one Anderson, an exciseman, at the place where the paper was posted, along with the witness ; that the prisoner told him, Anderson, that he knew his principles as well as the witness Stirling's; that it was they that had brought Mr Hai'die there to pull down the proclamation, and he would mark them well. Now, Gentlemen, is it possible, with the utmost stretch of candour and mercy, to suppose that the prisoner at the bar would have used this language in behalf of, and in de- fence of a paper of the contents of which he was wholly and completely ignorant f Gentlemen, to this fact you have the evidence of Hugh M'Pherson, if you required any corroboration ; but there is no contradiction, and M'Pherson swears to the same fact- that he was in Glasgow upon the 1st and 2d of April last; that he was out in the morning of Sunday the 2d of April ; he knew Mr Hardie, whom he saw that morning in Duke Street, when looking out of his window; there were other people upon the street at the time, who were reading a paper that was posted upon a sentry-box ; there were twenty or thirty of them; one man was reading aloud; that he shortly afterwards went out, and saw the prisoner Hardie. Mr Hardie, the magistrate, attempted to take down the paper, and the prisoner took Mr Hardie by the breast, and would not allow him to take it down ; therefore, you have here the prisoner implicated with this treasonable paper in a manner that it is impossible to doubt he had made it his own. He says, " I will shed the last drop of my blood before you shall take it down." He resisted its being taken down ; he told people, I know your principles, gentlemen; you brought Mr Hardie here to take down this address, and I will mark you well for it; therefore, Gentlemen, alas ! I am afraid this prisoner, at his very first appearance on the stage, is implicated too deeply in 288 the knowledge of this treasonable paper ; for that it was treasonable his Counsel could not deny, no man can deny it. Then, Gentlemen, what is it? A proclamation calling on the people to rise in arms to assert their rights, and never to return but in triumph ? to rise in arms ; and, within two short days after that address, what is it you see the prisoner doing ? rising and marching in arms, as the proclamation had called upon him to do. If, after this, you shall think that his so rising in arms (for in arms he was, it is not dis- .puted) had no connexion in his mind with the treasonable Address which so called upon the people to rise, you will find a verdict for the defendant ; but if, on the other hand, it be too plain, as I am afraid it is, that no charity of con- struction can or ought to lead you, or any other reasonable man, to believe that the prisoner's so rising in arms was not connected with that purpose and intention, then you will draw the necessary conclusion, that his so rising in arms was in furtherance of the treasonable purpose of that publication, and was an overt act of Treason, an actual levying of war. Then, Gentlemen, I come to the evidence of Archibald Buchanan, a publican at Castlecary Bridge ; a party came to his house on the Wednesday morning. At half past six they came across the bridge ; they came and tapped gently at the door; he told them to come in; there were from twenty-four to thirty of them ; they had all some weapon or other ; some had long sticks, with irons at the end of them in plain English, pikes ; some had muskets ; they asked if he had some porter and bread, and they got a dozen of porter, and a dozen of two-penny loaves ; they were at his house about half an hour. One little man asked what was to pay ; this was Baird, whom he identified. He, Baird, gave him seven shillings and sixpence ; he did not hear him say any thing about a note ; had the money in his pocket, as far as he observed; asked for a receipt, which re- ceipt the witness was preparing to write out in the usual terms; but he was told that was not the form which they required, and Baird dictated the form of the receipt to him, which is this : " A party," or, " the party called here for victuals, for porter and bread, and paid for it 7s. 6d." That is the 289 terms of the receipt, " the party called." Now^ Gentle- men, if Mr Baird had paid this money out of his own pocket, and meant to treat his fellows with it, what was the use or purpose of a receipt in any terms ? A receipt is sel- dom asked or given for a tavern-bill, paid at the moment, before they leave the house ; but if a receipt was asked up- on such an extraordinary occasion, it would be asked in the name of the person who paid the money for the use of himself or others ; but this is asked in the name of a party, or the party, evidently with a view that they might have a document to shew to some person or other from whom they were to reclaim the money they had so expend- ed. Then the party went away together ; they did not cross the bridge again, in other words, they proceeded on their way eastward. Then you have Alexander Robertson, of Drumhead, in the parish of Falkirk, who remembers, on the morning of the fifth of April last, when he opened his window-shutters, about eight o'clock, he saw a parcel of people walking in military array along the canal eastward, about four hun- dred yards off; they had long sticks or pikes sloped over their shoulders, they were marching two deep, they were keeping step he thinks there were about fpur-and- thirty they went out of sight in about an hour or less ; he saw them marchingalong the drove-road going up to Bonnymuir; they went up towards the top of the hill ; he then saw that a few had guns ; the position they had taken in going up the hill one above another enabled him to see that some of them had guns ; the rest had pikes. The last time he saw them, they were going in a more careless and straggling manner than they had done before ; they went up to the top of the hill, and halted there for about half an hour, during which time he was keeping his eye upon them. As he was going home to take his breakfast, he saw a troop of cavalry coming at full speed, and stood still to see which way they went ;, he was then between a quarter and half a mile from the place where those men were assembled upon the muir. These people remained in the same position, sitting and standing on the muir, till the cavalry came VOL. i. T 290 through the aqueduct, and went up the drove-road, the same way that the people had gone, until they got to the edge of the muir ; the people were upon a height, from whence they must have seen the cavalry ; they waved their hats over their heads ; the party that were standing on the muir ran down the hill as the cavalry came up, and posted themselves at the back of a dike ; they lined the dike, that is, drew themselves up behind the dyke which he says was about four feet nine inches high; that they stood so as not to be seen; that the cavalry came up, and they commenced firing upon them in an irregular manner (that is, those who had taken up their position behind the dyke,) when the cavalry were at about eighty or a hundred yards dis- tance from it. The witness was about six hundred yards distant ; he saw the guns over the dike when they were le- velled and fired at the cavalry ; there was first one shot fired, and then two ; there were more than two shot fired in an irregular manner. The cavalry continued to approach the dike ; they went through a small slap in the dike, he thinks, before they fired ; but he is certain that no shot of any kind was fired by the soldiers until after the firing from the dike ; after they went through the slap they fired, and he could not see for about a minute, in consequence of the smoke ; in a short time, they were all dispersed or taken prisoners ; there was a wounded man that was taken and carried to his house by desire of the Lieutenant, from whence he made his escape. Upon his cross-examination, he again swears, that he is sure the cavalry did not fire till a number of shots were fired at them. Gentlemen, here you have a treasonable proclamation, calling upon the people to rise you have a party so risen, and marching in military array 9 with arms of different de- scriptions, of which party the prisoner was one; you have them, upon seeing a party of his Majesty's troops advan- cing, rushing down the hill to take up a most favourable position, a position which, notwithstanding all the discipline and courage of those troops, if they had not been enabled by that gap in the dike to get through, it is impossible to 291 say, might not have enabled that party to have utterly de- feated, if not totally annihilated, that body of troops ; for, it must strike you that the only wonder is, that in the mer- cy of Providence more mischief was not done. Now, Gen- tlemen, for what purpose is all this, is the question that you are called upon to decide. Was it for the purpose of escape ? was running down into the jaws of the soldiers the way to escape, when they had a dike between them, and the advantage of many hundred yards at the top of a hill, with a wood at hand ? (for it was proved that it was only when the cavalry turned round the angle of the wood that the firing commenced ;) Was this for the mere purpose of escape ? or did they resist some supposed warrant to ap- prehend them, engaged in some minor purpose, not con- nected with the Treason that had brought them out ? I wish from my heart that you could draw that conclusion, or that I could direct you to do it. I cannot draw it in my mind ; you may. You next have the evidence of James Russel, of Longcroft; he lives within a gun-shot of the .public road. On the 5th of April, between seven and nine in the morning, a party of men came to his house ; he understood them to be seek- ing for arms ; he had two guns in the house, and he hid one of them ; and before he returned from hiding one of them, a man belonging to the party had taken the other gun away. He saw a gun afterwards in Stirling Castle, which was taken from some of the prisoners, and he identified it. James Murray, armourer, and John Benson, the store- keeper, swear they have had the arms in their care, and kept the key, and no other person had it from the time they were deposited there till they were brought here; and James Russel was called back, and identified his gun. Now, Gentlemen, what is all this for? what did they seize arms for ? What was the object in seizing them ? was it for any lawful purpose ? was it for any purpose, short of the purpose which that Address had in view ? If it was, say so ; but that they did seize arms to accomplish the pur- pose in view, whatever it was, there can be no manner of doubt ; and, accordingly, you will find it admitted by the 292 prisoner, that their purpose was to seize arms wherever they could find them. Then, Gentlemen, you have the evidence of William Grindlay, who lives at Bonny Mills He says, on the 5th of April he saw a party near his house, about twenty in num- ber, they were going along in marching order, most of them were carrying pikes, he observed one with a gun ; they were going along the canal-bank towards Falkirk and Camelon, but he lost sight of them ; he afterwards saw the smoke of guns on the height of Bonnymuir, and saw some cavalry pursuing a parcel of people ; after the party had passed his house, he missed a pitchfork, which, he knows, either the night before, or some short time before, he saw leaning against the side of his house ; that he saw it afterwards with the horsemen, when they came back with the men, who he believes were some of the same he had seen in the morning ; he identified his pitchfork, which was in the box ; and you will recollect that he was called on by a cross question, not a very fortu- nate one, how he could identify one pitchfork from another, and he pointed out a mark by which he knew it ; and you know in the country, people know what belong to themselves, though they cannot make the description intelligible to ano- ther, but it so happened this had a mark which made him positive it was his. Then, Gentlemen, you have the evidence of Nichol Hugh Baird, a private in the Falkirk Yeomanry Cavalry, he went on duty on Monday the 8d of April ; he got leave of ab- sence to go home on the Tuesday evening; as he was re- turning to join his Troop on the Wednesday morning about half past seven o'clock, he came up with about a dozen men on the road, apparently armed, who obstructed his passage ; he asked them to let him pass ; one man came out and ob- structed him, saying, I will be damned if you shall ; that they demanded his arms ; that upon that he presented his pistol at them, and made his way back again and returned to Kilsyth, and gave information ; that this was about four miles and a half eastward of Kilsyth ; that Lieutenant Hodg- son, of the 10th Hussars, immediately came off with a party of Hussars and Yeomanry ; that he was ordered to join them ; they consisted of two or three and twenty, partly 293 Yeomanry and partly Hussars ; the Hussars were mounted, some on the Yeomanry horses and some on their own ; that the party moved off eastward to Bonnymuir ; they advanced up the muir ; there were people on the top of the hill, whom they advanced towards ; that these people advanced towards the party, and took up a position behind a wall ; they cheer- ed ; he says there were about five and thirty or forty men, armed with pikes and guns ; when the cavalry were about thirty yards from the wall, those from behind the wall level- led their pieces over the wall, and fired a volley ; that there was no firing by the military at the time that Lieutenant Hodgson rode up and desired them to surrender, upon which a few more shot were fired ; that they got over a slap. The people still resisted ; that a piece missed fire which was pre- sented at Lieutenant Hodgson ; that several shots were fired before they gave way ; then they run in all directions ; they were pursued and taken prisoners ; that all who were so taken prisoners were engaged in that affair ; he identified the prisoner as being of that party, and says he saw him again in Edinburgh Castle ; that arms were found upon the spot ; that several ball cartridges were taken from different- prisoners ; that there was a bag taken from one of them, containing ball, and cartridges, and powder; he identified Murchie and Johnstone, and he also identified Baird, Alex- ander Hart, and Benjamin More, as being all in the battle; and he identifies positively the gun which was levelled at Lieutenant Hodgson as being a kind of blunderbuss. The next, Gentlemen, is the evidence of Thomas Cook, who is a serjeant in the 10th Hussars. He swears, that he left Stirling about six o'clock in the morning of the 5th of April, to go to Kilsyth. At about 7 or 8 miles from Kil- syth, he met 5 or 6 men armed with different sorts of arms, pikes, pistols, and firelocks; he identifies the prisoners, Hardie and Murchie, as being of that party : that upon his coming close up to them they formed across the road ; the prisoner was dressing them by the left : that is, in other and most fatal words, the prisoner acted as the leader or officer of that small party, doing the duty of an officer when he draws his men up to see that they stand regularly in line. They called upon the witness to halt. He asked them what 294 they wanted ; and one of them said, they were seeking for their rights, as honest men ought to do. Now, Gentlemen, attend here to what is the language of this Address. This man said they were seeking their rights, and one of the pa- ragraphs in the Address following that with regard to the soldiers is this : " We earnestly request of all to desist from their labour from a certain day," just what the prisoner is proved to have done, when a gentleman states he saw him marching about the streets of Glasgow with bands of men, " to desist from their labour from and after this day, the first of April, and attend wholly to the recovery of their rights ; and consider it as the duty of every man not to recommence until he is in possession of those rights which distinguishes the free man from the slave ;" so that you see this party here using the very identical language of that proclama- tion under which they originally set out, they were seeking their rights. The witness then goes on to say he dissem- bled with them ; he answered he was very sorry for their case. They said, you are an orderly man, where are your dis- patches ? Was it in the prosecution of their rights ; was it in the prosecution of any private purpose, or the redress of any local or private grievance peculiar to them, that they were to take the dispatches from a man carrying dispatches from one officer to another ? or was it such conduct as one body of arm- ed men would use against another body of armed men, to see what the orders were, under which the others were acting, and to see what force might be brought against them from other quarters ? What would the most regular general do, but to see if the prisoner had any paper which would give him any infor- mation with regard to the danger he might run in marching further on ? He said that he had no dispatches : that he himself had been left behind at Stirling. That they con- ceiving he was left behind from drunkenness or something, said, that is bad for you. They wanted to take his arms, but one said No : that he told them he was a friend of their cause : that he was a weaver, and had a wife and children of his own, and was very sorry for their situation : that they asked him if he could read ; he said, yes : that upon his telling them that, they took out a roll of hand-bills and gave him one. He cannot say who gave it to "him, but one of the 295 party, of which the prisoner is proved to have acted as leader and commander. Now, Gentlemen, I state to you as the most undoubted law of the land, that the leader of a party in arms must, in the nature of things, be answerable for what is done by that party under his command. Take it in this shape, and it will be intelligible to you in a moment. Suppose this prisoner was the commander of the whole party of fifty or sixty, would it be tolerated for a moment to say he was not responsible for every shot fired, and that he could not be convicted except for the use of the weapon in his own hand ? A commander, then, who seldom fights at all, is not answerable for the Treason ; that is the inevitable and legal consequence. If the argument of the prisoner is well founded, that this man is not answerable for the acts of the party under his command, then a general of a treasonable army is the safest of all men, because if he is not answerable for that which others may do, he seldom does any thing in the way of fighting himself. Gentlemen, he saw this paper delivered ; he was in the com- mand of that party ; if he did not know what it contained, he should have called upon them to shew it to him Sir, let me see that before you give it to a dragoon, so as to impli- cate me ; but he did no such thing ; he saw it given and ap- proved of it, if he did not order it ; and he must be held in law, to know what the paper was, or at least in law he is an- swerable for it ; and, Gentlemen, accordingly, in a noted case in thereignof King William, the case of Lord Preston, a Scotch Peer, who was tried in England, there was a paper found in his desk, containing a statement of a scheme of invasion by the French, which was read and received as evidence against him, of a purpose to compass and imagine the death of the King, although it was not proved or attempted to be proved, that he had communicated that paper to the enemy, nay, I do not know that it was proved that he knew the contents of that paper ; but being a paper in furtherance of a traitorous correspondence, in which he was proved otherwise to be con- cerned, it was received against him. Here you have the prisoner at the bar seeing a large roll of hand-bills taken out by one of his party, and one of them handed to the serjeant of Hussars, because they believed he was one of their friends ! 296 therefore, Gentlemen, the prisoner at the bar is implicated in the strongest manner with this paper so given to the ser- jeant; it was given in his presence, it was given by his per- mission, it was given by people over whom he had assumed, and was exercising an authority and command, whom he might have restrained from giving it, if he did not approve of it ; and if he had attempted to restrain them, the serjeant would have heard it, and then he might have shaken himself loose from the delivery of that paper. The serjeant gave that paper to Lieutenant Hodgson, who returned it to him ; he put it in his pocket, and afterwards gave it again to Lieu- tenant Hodgson before he reached Bonnymuir ; he never had any other paper of that sort, and is quite sure that the paper which he received from the party upon the road was the same paper that he gave to Lieutenant Hodg- son. He says, that on the party reaching Bonnymuir they came into a kind of a bog on their right, and they turned to the left towards the angle of a wood. There, Gentlemen, were the means of escaping. A wood was at hand, into which they might have escaped, as you know well the advantage a person on foot has in a wood over a person on horseback. That the party fired some shot at them from behind a wall where they were, from thirty to forty yards distant; that no shot had been fired by the cavalry before that took place ; that &they got through a slap, and a skirmish then took place ; that he saw the man who wanted to take his arms, that is one of the five or six who were with the prisoner at the bar, but he was not taken ; that eighteen were taken ; that he escorted them to Stirling Castle, when they were delivered to the constable ; that all the eighteen that were taken were engaged in the skirmish ; that some arms were found after the affair was over ; the witness picked up a pike himself. On his cross-examination he says, that his reason for tell- ing them that he was friendly to their cause, and that he was a weaver, was because he was a weaver, and he knew the si- tuation of their affairs. He cannot recollect the individual by whom the hand-bill was delivered to him, it was one of the five or six, and they all saw it. Then, Gentlemen, there is the evidence of Lieutenant Hodgson, a Lieutenant in the 10th Hussars, that, on the 297 5th April, he marched early in the morning from Stirling to Kilsyth, where he arrived at about half past five ; that their horses were jaded by having made so quick a march, in about an hour and a half. After this he received informa- tion from Mr Baird of the Yeomanry, which induced him to put his party in motion. This was about a quarter of an hour before he saw Cook, who had been left behind at Stir- ling. Cook shewed him a paper when Lieutenant Davidson was present, which he looked at, and saw it was an Address to the People, and returned it to Cook. The party set out from Kilsyth, ten or twelve of the Hussars being mounted on Yeomanry horses. The party which he commanded consisted of thirty-two, of which sixteen were Hussars ; that they went in the direction of Falkirk ; that on the road he asked Cook for the paper, which he had returned to him at Kilsyth, and received it from him ; that they got intelligence that the men who had stopped Cook, had gone to Bonny- muir, to which they proceeded, and found them on the hill, when they gave a cheer, and ran down towards a wall, from behind which they fired on the cavalry two or three shots, or more ; that he advanced close to the wall, and called on them to lay down their arms, and ordered his party to cease firing, which they did ; that he desired them five or six times to lay down their arms ; that he, with a few of his men, got through a gap in the wall to the same side they were on ; that he presented his pistol at a person who appeared to be their leader, which flashed in the pan, and did not go off. This person was Baird, whom he identifies, and who, he says, had presented his musket at him the whole time he was getting round the wall ; that when they were getting through the wall they use'd pikes against his cavalry, as an obstacle to their passing the gap ; that the witness was wounded by a pike in the hand, and his horse was so wounded that he died in a short time ; that the serjeant also was wounded in two places ; that they succeeded in taking eighteen prisoners, whom they brought to' Stirling, besides one whom they left in the field much wotmded ; that the arms that were taken consisted of sixteen pikes, a pike handle, a pitchfork, five muskets, or guns of different kinds, and two pistols, with some ammunition, which he saw col- 298 lected together, and which were brought to the Castle in this town, along with the prisoners ; he identifies the prisoner and Baird, and the boy Johnstone, and Hart and Gray, and Moir and Murchie, as being of the party who were in that skirmish ; that he is quite certain that all the prisoners who were delivered over to the custody of the officer in this place were in the skirmish ; they were kept close together as they were conducted along the road, surrounded by the ca- valry ; that he observed Baird and Hardie walked in the rear the greatest part of the way, arm in arm. Then he told us very fairly that he had not possession of the paper which he himself received from Cook during the whole of the time, as it was one night in the possession of Colonel Taylor, the commanding officer of the regiment ; but that he had read it before he so delivered it to Colonel Taylor, and that the paper he received back again from Colonel Taylor, he did believe to be the identical same paper he had so delivered to him, at least he is quite certain it was in words the same. Therefore, Gentlemen, when the question comes to be quo animo, with what intentions, with what object, this accused party marched out of Glasgow, and so engaged these troops, it matters not whether that paper was found upon the pri- soner, it is enough if they knew of that address from any copy ; and that the prisoner knew of it, is proved by Mr Hardie, who saw him reading it, and hearing it read at the watch-box ; it is proved against him by his having permitted one of his party to deliver one copy to the Serjeant, which copy, or one similar to it, was produced by Lieutenant Hodg- son, and sworn to be the same in words. Then you have the evidence of Lieutenant Davidson to the same effect, with regard to the skirmish, which is proved, but not denied ; he says they resisted with pikes. Then Alexander Coutts, the gardener to Mr Davidson, says, he is a private in the Kilsyth troop of the Stirling- shire Yeomanry cavalry : That he was one of the party who went from Kilsyth to Bonnymuir in the beginning of April last, and was present at the skirmish which took place there : That some shots were fired at them across a wall : That the cavalry got through a gap in the wall, in which they were opposed with guns and pikes by these men ; and he identi- 299 fies Balrd and Hardie ; that he saw them taken prisoners. He saw the prisoner active while he was getting through the slap ; he had a pike in his hand. Then you have the evidence of John Davidson, who was in the skirmish, after the close of which, he saw a bag taken from one of the prisoners by a hussar, into which were put several parcels of ball cartridges and powder that were taken from the persons of several of the prisoners : That he saw two or three of them searched, and ball cartridges found upon them, which were put-in the bag that the ammunition was in. Then you have the declarations of the prisoners. Now, Gentlemen, with regard to declarations, I need not tell you, who, I dare say, many of you, have served on Juries, or have been present at trials in this country, that the declarations, if proved to have been emitted freely and voluntarily, and when the prisoner was in his sober and sound mind, is com- petent evidence, and it is so in England. Now, Gentlemen, what are these declarations ? this prisoner was not present at the examination of any one of the witnesses who have this day appeared against him ; he knew not what they had said ; he knew not what they were to say this day ; he was at liberty to make his own story as he pleased to tell the truth, or not the truth, as he pleased upon his examination, to make the fact exactly as he thought it most favourable for himself. Alas, without knowing what these witnesses had said at that time, or were to say this day, you will find that his declara- tions, in almost every particular whatever, certainly in all material particulars, do corroborate the evidence of every one witness that has been examined in this cause. This, Gentlemen, no doubt, may be said to be unfortunate for the prisoner, and it is unfortunate ; it may be said, to be hard against the prisoner to use it against him ; but it is lawful evidence, it is evidence which he furnished voluntarily, without compulsion, in his sober senses, and in his sound mind. Why he made that confession, I cannot tell, and you cannot tell ; he was at liberty to make it, or not to make it, as he pleased ; but he has made it, there it is, you will read it, and compare it with the evidence before you. 1 300 Gentlemen, I regret that I have detained you so long. But, after the eloquent appeal to your passions, and the attempt to lead you away from the evidence, for not one word of evidence was read to you on the part of the prison- er, or attempted to be read in any thing like the words of the witnesses, it was my duty to call your attention back to the facts of this case. It is the facts of which you are to judge as applicable to the law ; and the law, as I have laid it down to you, as applicable to the facts. You will now retire, and consider of your verdict. I have no doubt it will be a verdict according to your consciences ; and if it is not agreeable to my view of the evidence, that it will be, because in your consciences you cannot concur in opinion with me. I have given you my opinion, because I have always done so when I have sat in the chair now filled by my brother on my left hand in the Court of Justiciary ; I always thought it was a duty I owed to a Jury to let them know what my opinion was, that they might canvas it on the one hand, knowing, I hope, that my character was such, that they would not lightly differ from me, but, at the same time, knowing that they would boldly differ from me if they were compelled to do so. But, on the other hand, if their opinion was against the pri- soner, it would be satisfactory for them to know that such also was the opinion of the judge. You will specify the counts on which you find the prisoner guilty, if you find him guilty at all. The Jury withdrew at five minutes before one o'clock, and returned into Court in twenty minutes, finding the pri- soner Guilty on the second and fourth Counts of the Indict- ment, and Not Guilty upon thejirst and third Counts. The Court adjourned at one o'clock on Friday morning the 12th, to 10 o'clock the same morning. THE TRIAL OF JOHN BAIRD. Stirling, Friday \kih July, 1820. PRESENT. The Right Honourable DAVID BOYLE, Lord Justice Clerk. The Right Honourable Sir SAMUEL SHEPHERD, Lord Chief Baron. The Right Honourable WILLIAM ADAM, Lord Chief Com- missioner. The Honourable ADAM GILLIES, Lord Gillies. And Others, His Majesty's Justices, Sic. JOHN BAIRD was set to the bar; and Thomas M'Culloch, Benjamin Moir, Allan Murchie, Alexander Latimer, Alex- ander Johnston, Andrew White, David Thomson, James Wright, William Clarkson, Thomas Pink, Robert Gray, James Clelland, Alexander Hart, JohnBarr, William Smith, and Thomas M'Farlane, were placed behind him. The Clerk then gave the prisoner his challenge in the usual form, and proceeded to call over the names of the Jury, beginning, by consent of the Lord Advocate, and the Counsel for the prisoner, from that part of the panel at which he left off on the trial of Andrew Hardie ; and as each Jury- 302 man answered to his name, the Clerk put to him the usual question as to being possessed of freehold property to the value of 40s. John Mitchell, tanner sworn. Thomas Smart, tanner sworn. Alexander Robertson, of Candy, gentleman challenged by the prisoner. John Russell, of Dallgreen, gentleman challenged by the prisoner. James Hodge, baker sworn. George M'Callum, of Thornhill, Esq. challenged by the prisoner. John Callander, of LadyVmill, gentleman challenged by the prisoner. Alexander Balloch, of Middlefield, gentleman challenged by the prisoner. John Hugh, of Gartcows, gentleman challenged by the prisoner. John Mitchell, of Mungal-mill, gentleman challenged by the prisoner. John Burns, writer challenged by the prisoner. Peter Bell, merchant sworn. Robert M'Kechnie, writer challenged by the prisoner, William Storie, writer sworn. Alexander Monro, writer sworn. John Thomson, vintner challenged by the prisoner. James M'Pherson, vintner challenged by the prisoner. Colin M'Nab, of Grangemouth, merchant challenged by the prisoner. James Milne, merchant challenged by the prisoner. Arthur Pollock, merchant challenged by the prisoner. Walter M'Target, merchant challenged by the prisoner. Alexander Dallas, gentleman sworn. James Buchanan, of Corntoun, portioner sworn. Alexander Monteath, of Caldhame, gentleman challenged by the prisoner. John Buchanan, of Berryhill, gentleman sworn. Peter Muirhcad, excused on account of illness. James Ewing, seedsman -sworn. 303 Thomas Johnston, of Falkirk, stationery-challenged by the prisoner. Alexander Learmonth, grazier challenged by the prisoner. John Rankin, bookseller challenged by the prisoner. Robert Balloch, grazier sworn. John Shaw, land-surveyor sworn. The Crown made no challenges. THE JURY. JOHN MITCHELL, ALEXANDER DALLAS, THOMAS SMART, JAMES BUCHANAN, JAMES HODGE, JOHN BUCHANAN, PETER BELL, JAMES EWING, WILLIAM STORIE, ROBERT BALLOCH, ALEXANDER MONRO, JOHN SHAW. The Jury were charged with the prisoner in the usual form. Mr HOPE opened the Indictment. Mr Solicitor-General. May it please your Lordships, Gentlemen of the Jury, In the progress of the lamentable, but indispensable, investigation into those events by which the public order has been recently endangered in this coun- try, and by which the constitution has, in no slight degree, been attempted to be subverted, I have now, upon this se- cond day of our sitting, to call to your attention, and to intro- duce for your consideration and determination, the case of John Baird, the prisoner at the bar. He is brought here upon an indictment, wherein he is charged with the crime of High Treason. That Treason, as you will iind stated in the abstract of the indictment, consists, in the first place, of compassing and imagining the death of the King. It con- sists, in the second place, of levying war against the King. It consists, in the third place, of compassing, imagining, conspiring, and devising to levy war for the purpose of ob- taining an alteration in the constitution, a change in his Ma- 304 jesty's councils, or a change in the councils of one or other, or both, Houses of Parliament. Such is the general character of the indictment upon which the prisoner is brought here ; and before stating to you ge- nerally, which it will be my duty to do, the evidence by which these charges are to be conclusively and indisputably brought home to him, it is incumbent upon me to give you some ac- count, a brief and general account, of the law of Treason, upon which this indictment is founded. Gentlemen, the law of Treason in Scotland, that law by which the constitution of Scotland was protected prior to the happy union with England, was ill-defined, uncertain, and arbitrary in its nature ; and it was one of the first, and not the least fortunate results of the Union, that by one general enactment which immediately followed it, the law by which the public order is protected and established, was introduced as part of our law from the more mature system of England. Gentlemen, it is not here necessary to enter into any gene- ral speculations into the peculiar advantages or disadvantages which may attend that system of law, or any other system, or into possible improvements which more fertile imagina- tions which the imagination of others, more given to trust in theoretical ideas of perfection, might suppose to be ca- pable of being introduced into our system. It is my duty to tell you what that law is, and it is your duty, and your solemn and inflexible duty, to give effect to that law as it shall be explained to you from the best authorities. This much, however, I feel myself enabled confidently to say, that the law which you are this day to administer is expressed in terms remarkable for its simplicity and precision. Gentlemen, it is contained in a statute of Edward III., from which I will read to you all that it is indispensable for you to have in your view. " Whereas," that statute says, " divers opi- nions have been before this time, in what case Treason shall be said, and in what not, the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth : that is to say, Avhen a man doth compass or imagine the death of our Lord the King, or if a man do levy war against our said Lord the King in his 305 realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be proveably attain ted of open deed by the people of their condition." From this you will observe, that there are two distinct propositions, two distinct definitions of Trea- sons laid down, which it is necessary for you to attend to. The first is, " when a man doth compass and imagine the death of the King, and be thereof proveably attainted, by open deed, by the people of their condition." And the second is, " if a man do levy war against the King in his realm, 1 ' and, in like manner, be thereof proveably attainted, by open deed, by the people of his condition. Gentlemen, it must occur to you, and to every one, that in the first of these Treasons there is a peculiarity. In genera], in the principles of law by which the life of man is protected, no one is held to be guilty of murder, no one is brought within the sanctions of the completed crime of mur- der, unless the fact of homicide has taken place ; but here, for reasons, to the wisdom of which every man must assent, it is written, that if a man doth compass and imagine the death of the King, such shall be reckoned the completion and accomplishment of a crime ; and therefore, if there had been no other terms but these, a man must have been doomed to death as a traitor for nothing else but the thoughts and sen- timents of his heart, for those thoughts and sentiments for which, in every other department of the law, a man is con- sidered only to be responsible to God, to whom all hearts are open, and from whom no secrets are hid. But looking to the dangers of subjecting to the investigation of any human tribunal to the investigation of a tribunal which must be administered by the imperfect faculties of man, such an of- fence resting upon such an evanescent thing as a man's thoughts, a qualification has been introduced, which throws around the person who is accused a protection quite sufficient for the safety of every innocent man ; and accordingly, the statute has added these terms, " and be thereof proveably attainted, by open deed, by persons of his condition."" Gentlemen, it is a matter of no consequence here to inquire, TOL. i. u 306 although it has been disputed by subtle lawyers, whether " attainted by open deed" shall be considered as part of the definition of the offence, or whether it shall be considered as the sole evidence by which the thoughts of the heart shall be discovered. Lawyers have differed on that, as they have differed about many subtle things ; but all lawyers have agreed upon the substance, and upon the justice of it, as I have now explained it to you ; and, accordingly, Judge Foster, the ornament and great luminary of English juris- prudence a man remarkable for his attention to the liberties of the subject so expresses himself. After having adverted to that distinction which I have briefly noticed, he says, (Foster, p. 203,) " Overt acts undoubtedly do discover the man's intentions, but I conceive they are not to be con- sidered merely as evidence, but as the means made use of to effectuate the purposes of the heart. With regard to ho- micide, while the rule Voluntasprojacto prevailed, the overt acts of compassing were so considered. In the cases recited by Coke, there were plain flagitious attempts upon the lives of the parties marked out for destruction ; and though in the case of the King, overt acts of less malignity, and having a more remote tendency to his destruction, are with great propriety deemed treasonable, yet still they are considered as means to effectuate, and not barely as evidence of the trea- sonable purpose. Upon this principle, words of advice or en- couragement, and, above all, consultations for destroying the King, very properly came under the notion of means made use of for that purpose ; but loose words not relative to facts, are at the worst no more than bare indications of the malig- nity of the heart. 1 ' It is quite clear, however, that, whether the terms " attainted by open deed" be held to be part of the definition of the crime, or to be the sole and peculiar evidence by which it is to be established, the result is the same to the person accused. Gentlemen, the purpose and only object of the law by which Treason is defined, is the protection of the constitu- tion the protection of all those establishments by which the general polity of the state is upheld, the protection of the three estates of the kingdom. You are aware of the pe- 307 culiar function of the Kingly Estate ; the King constitutes the third Estate of the kingdom, to that Estate are commit- ted the whole active or executive powers, without which the laws can have no operation, without which the laws cannot for one instant be enforced, and would be nothing else than a dead letter. In that respect, the Kingly Estate is invaluable; and it is impossible that the Constitution could exist for an hour without it. But, besides the general execution of the Laws, to the Kingly Estate is committed the duty of protect- ing and supporting all the other establishments in the king- dom ; and it is the duty, the inflexible duty, of that branch of the Constitution, to interpose itself by means of the Exe- cutive power which is committed to it, at the hazard of its utter dissolution, at the hazard of the personal destruction of the individual to whom those powers and that duty are committed, between all violence and all forcible innovation which may be attempted to be directed against either of the other two estates, or against any of the Constitutional esta- blishments of the kingdom. I have enforced this upon your attention, in order to in- troduce next to your notice, certain constructions which the general terms of the statute that I have read have necessarily undergone ; and although, in popular language, those are called constructions, and although, in popular idea, there is a great abhorrence from early associations with our history, at the term constructive Treason, I am to state to you that these do not fall under any of those instances of constructive Treason which have given rise to those just feelings rather than prejudices, but that they were in fact direct, necessary, inevitable inferences, not merely from the terms of the sta- tute, but what is infinitely better, from its reason, from its intendment, from the only definable, conceivable, or jus- tifiable object for which such a branch of the law ought to be or can be introduced into any system. Therefore, Gen- tlemen, by inference, or construction, or by whatever term it may be denominated, it is held to be a compassing and imagining of the death of the King, if any conspiracy is en- tered into for the purpose of imposing any restraint upon the King in the exercise of his functions, if any conspiracy is entered into for the purpose of controlling him in the 308 exercise of those powers which the Constitution has confer- red upon him. It is his duty, as the head of the Govern- ment and Constitution, to protect himself, as I said, against such restraint, at the peril of his life, by those means which are entrusted to him ; and it is justly held in law, that such attempts to impose restraints in the exercise of his functions and constitutional duties, are considered as directly and ne- cessarily endangering his person and life, and therefore fall under the definition of compassing his death. In the next place, there is another construction which, perhaps, may result into the same thing. If any conspiracy be entered into, any devices engendered, which are evidenced by open deed in furtherance of the fulfilment of them ; if any devices or conspiracies are so entered into for the purpose of deposing the King, it is held under the same safe and just construction, that this also is a compassing of bis death, not merely upon the ground which I have stated to you, that it is his duty to resist such deposition, even to the death, but also from this notorious fact, proclaimed by our history, and by all history, that the space between the deposition and the death of Princes, is too narrow to be estimated. Gentlemen, there is a third construction which the statute has upon the same principle received, viz. that if any man levy war against the King, actually levy war, (what may or may not be a levying of war, may be a different ques- tion, to which I will speak by and by,) but if a man levy war against the King, and be thereof proveably attainted by open deed, such a proceeding is included under a compassing and imagining of the death of the King. He is the head of the ex- ecutive, forming the third estate ; he is at the head of the army ; he is entitled to lead on, and frequently has led on to battle, and it is impossible to contemplate the collision of that army with another army in rebellious array, without the conviction, that, if the result should be unsuccessful to the King's army, such success could not be accomplished without necessarily and inevitably endangering his life, both his life and the existence of the Kingly Estate. Therefore, Gentlemen, in the indictment before you, if upon the facts, as they shall be proved to you, it shall appear that there did occur a levy- 309 ing of war against the King, you are not only entitled, but, I should say, you are bound to find the prisoner guilty, un- der the first count in the indictment. The next count in the indictment is that of levying war ; it forms, as I have already explained to you, both a separate Treason in itself, and it forms also an overt act of the first Treason to which I have already spoken ; and the question for your consideration will be, under the second count of the indictment, whether or not, according as the facts shall be proved, there has occurred a levying of war, as the law so understands those terms ; and in order that you may ap- ply the law to the fact, I shall say a word or two upon what is or is not levying war. Gentlemen, there are two things to be considered under this branch of the law the first is, whether the circumstan. ces under which the parties are charged with the crime, are such, that is, whether they are so arrayed, so formed, so pre- pared, so armed, so possessed of force and of hostile weapons, as to bring them under the rational description of an armed force. This is a matter of fact ; a matter of proof to which nothing else can be required but the application of a very small portion of common sense. Thus much I may say to you, however, in general, that, towards the establishment of the fact of levying war, I mean as to the manner of it apart from the object of it, to which I shall speak afterwards, it is not necessary that the men should be regularly appoint- ed with all the pomp and circumstance of war. It is not necessary that they should be uniformly clothed and equip- ped, or that they should be uniformly armed, or that their arms should be of the most destructive kind which the in- ventions of modern war have prepared. It is quite suffici- ent, if, either from the number or from the manner in which they are appointed, they are so constituted as to attempt to effect the purpose which they have in view by force of arms. But I cannot anticipate, that, on this part of the case, you will have room even for the slightest doubt. It is stated in Foster, page 218, 9, " An assembly armed and arrayed in a warlike manner, for any treasonable purpose, is helium lcvatum t though not bdlum percussum> listing and marching 310 are sufficient overt acts, without coming to a battle or ac- tion ; so cruizing on the King's subjects under a French commission, France being then at war with us, was holden to be adhering to the King's enemies, though no other act of hostility was laid or proved." Therefore, it is quite sufficient if you shall be satisfied that there was a prepara- tion of warlike instruments, and an array and preparation of the men with a view to the accomplishment of their ob- ject by force, in order to bring them within that part of the law, in so far as that part of the law is concerned. But the next and most important point for your consi- deration is this, What was the object for which this levy- ing of war was made ? If it should clearly appear that the war is levied for the accomplishment of some private pur- pose, for the satisfaction of some private revenge, for the de- molition of some private property, for the accomplishment of some particular robbery, for a smuggle for instance, or for any purpose not of general concernment ; if you are satisfied of that (the manner in which that is to be proved is another question) then, to be sure, whatever may be the crime for which the prisoner may be amenable to the laws of man or of God, it is not within the sanctions of Treason that he can be placed. No lawyer will intimate a' doubt upon that subject, and I should be the last man upon earth to state a doubt upon it. But, on the other hand, if in the whole proceedings which shall be established in evidence before you, it shall be proclaimed beyond the reach of reasonable doubt, that the object was one of gene- ral concernment if, for instance, it shall appear to have been one stated to be for the redress of grievances, if it shall appear to be one for the accomplishment of an alteration in the constitution, an alteration in the mode of election, an alteration in the constitution of Parliament, an alteration in even the minutest but still sacred particulars of that consti- tution under which the happiness of this country is protect- ed, and its national grandeur has been established to a de- gree beyond the reach of imagination if it shall appear to you, that, in the minutest particular, it was their intention to touch this sacred fabric, then I say that it is impossible 311 for an instant to dispute that they are placed in the predi- cament of Treason, and must deservedly suffer the sanctions which the law has annexed to this the greatest of crimes. Gentlemen, I cannot admit, although it is to statute that you are to look for the precise definition of the crime of Trea- son, although it is to the common law or to the statute law that you are to look for the precise definition of all crimes subject to the determination of judicial establishments, I can- not admit that there is any thing here arbitrary, and not founded on those great principles of morals on which laws for the repression of crimes are established. Because I say it is quite impossible to contemplate the consequences which must arise from successful Treason, it is impossible to contemplate the subversion of law, it is impossible to contemplate the sub- version of the constitution, the anarchy, murder, plunder, and bloodshed which are necessarily involved in the results of successful Treason, without seeing and feeling that every crime against which God and nature have set their seal, is involved in the fearful consequences of successful Treason ; and, therefore, I hold that the crime of Treason is not of so arbitrary a definition or establishment as has been supposed, but that it resolves into, and is founded upon, those great and fundamental principles to which all criminal law and public order, and all the social relations under which the protection and happiness of man are progressively established, must be ascribed, I say the law of Treason is founded upon these reasons, and rests as much on the moral principles inherent in the nature of mankind, as any or all the other branches of Criminal Law. There is another count in this indictment, namely, compassing, conspiring, devising, and imagining the le- vying of war the use of hostile force for the purpose of overawing either House of Parliament, or the accomplish- ing an alteration in the constitution. Gentlemen, that o Treason is established by the SGth of the late King, a recent statute; and it humbly appears to me, that that statute did necessarily and justly introduce a certain ex- tension of the previous definition of Treason. It did not ne- cessarily follow in many cases which might be imagined, 312 and I need not go into the authorities upon it it did not necessarily follow that the conspiring and devising to levy war for those purposes fell under the first category of Trea- son, namely, compassing and imagining the death of the King; and certainly it did not, by any construction which has yet been established, and did not, under the strict terms of the statute, fall under the second category of Treason, levying, of war ; because it was necessary, to the complete establishment of that offence, that war should be levied ; and a conspiring to levy war, provided it had not arrived at the whole preparation of the means for its commence- ment, was not sufficient to establish the complete crime on that ground. But most justly the legislature considered that the constitution of the two estates of Parliament de- served and required to be as sacredly and as jealously pro- tected as the third estate of the kingdom. And, according- ly, it has just established the same definition of crime, of conspiring and devising, compassing and imagining, the application of hostile force to either House of Parliament, it has just established, in reference to the constitution of the deliberative assemblies of the kingdom, that to be a precise Treason, which it had long before declared to be Treason, in reference to compassing and imagining the death of the King. Now, Gentlemen, I am aware that I have, perhaps, de- tained you rather longer than I ought to have done with this explanation of the law, arid I am now briefly and gene- rally to state to you the species of facts the general out- line of facts, which are intended to be established before you j and the first, and notorious, and most criminal fact, which will be introduced to your notice, is that which is known by the affair or the battle of Bonnymuir a battle that certain- ly was not a very sanguinary one ; but the prisoner at the bar ought to feel, if he does not, and all others ought to feel, that he and his associates are now enduring the calm and impartial course of the law, only in consequence of the signal courage and humanity which distinguished the military officer who had the command of the King's troops upon that occasion. In that affair the prisoner at the bar, it 313 will be proved to you, was actively, distinctly, and continu- ally engaged, and, therefore, beyond a doubt, the main and principal fact of Treason, which it is incumbent upon him to defend himself against, and to exculpate himself from, will be clearly established j and I should hold, although it is not necessary, unless hereafter it should be pleaded to that extent, that, the opposition to the King's army being proved, that act itself must be clear and satisfactory evidence as an overt act of levying war against the King, and that there is no way in which the prisoner can escape from the inference of that fact, but by shewing that he had a private object in view. But, Gentlemen, the evidence will trace the matter a lit- tle further. It will be shewn that one of the persons, also actively engaged in that affair, was actively engaged in the publication and dissemination of an Address, in which the object of their daring proceeding, and of that hostile en- counter, is clearly and distinctly explained. I state to you, (but you will take the law, as I before said, from his Lordship ;) but, in the meantime, I state to you, un- der his Lordship's correction, that if it shall be proved, that in the party with whom the prisoner was associated, with whom he was in active co-operation, any one, or more, were possessed of, and did disseminate and publish, or that upon his person there was found a paper declaratory of the purpose, and relative to the purpose, and that such paper does indicate clearly a treasonable intention, if the overt act in which they are found engaged was not of itself sufficiently explanatory of the general purpose, you are bound and entitled to look to that paper as affording evi- dence, not merely against the person upon whom it was found, or to whom the dissemination of it is brought home, but as against one and all of the persons who were co-ope- rating with him in the active proceeding in which they were engaged. This is necessarily the conclusion ; and I state it to you as the clear law in all conspiracies, and in all pro- ceedings in which the co-operation of more than one person is found actually to be proved. It will be proved to you that a person actively engaged 314 in that affair, a person well known to the prisoner at the bar, was possessed of, and did disseminate, and was in. strumental, on more occasions than one, in the publica- tion of a treasonable address, about which no lawyer, no judge*, no man of unlearned common sense, can entertain the jnost^ remote doubt. I am stating, Gentlemen, this part of the law, not upon my own authority, of the imperfection of which none is more sensible than myself, but I read it to you from a book of unquestionable authority, I read it from Phillips's Law of Evidence, p. 96, 97 : " In prosecutions for conspiracies, it is an established rule that, where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursu- ance of the original concerted plan, and with reference to the common object, is, in the contemplation of law, as well as of sound reason, the act of the whole party, and, therefore, the proof of such act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question whether the prisoner is pro- ved to have been concerned in that particular transaction. This kind of evidence was received on the trial of Lord Staf- ford and of Lord Lovat, on the trials for High Treason at the Old Bailey in 1/94-, and in the case of Stone in 1796; in which last case the rule was completely settled. In that case, evidence having been given sufficient for the Jury to consider whether the prisoner was engaged in a conspiracy for treasonable purposes, it was determined that a letter written by one of the conspirators in pursuance of the com- mon design, (although the letter had not been traced into the hands of the prisoner or to his knowledge,) was admis- sible in evidence as the act of the prisoner himself. The acts of the several conspirators, who are engaged with the prisoner in one common object, are evidence against him, though he may not have been directly a party to them ; they are evidence as acts connected with, and in conformity with, his own acts." Gentlemen, I need no,t multiply authorities upon a point that stands so well supported by reason as well as law ; but you have evidence of their general object proclaimed, I say, 315 not merely by the notorious act in which they were enga- ged, but also with a direct connexion with that Address to which I have adverted, and I shall read some parts of it be- fore I proceed further. Gentlemen, the Address, which will be read in evidence before you, is in these words I shall read merejy part of it; you will have an opportunity of reading it yourselves " Address to the inhabitants of Great Britain and Ireland; Friends and Countrymen Roused from that torpid state in which we have been sunk for so many years, we are at length compelled, from the extremity of our sufferings, and the contempt heaped upon our petitions for redress, to as- sert our rights at the hazard of our lives, and proclaim to the world the real motives which (if not misrepresented by designing men, would have united all ranks,) have reduced us to take up arms for the redress of our common grievan- ces. The numerous public meetings held throughout the country has demonstrated to you that the interests of all classes are the same, that the protection of the life and pro- perty of the rich man is the interest of the poor man ; and, in return, it is the interest of the rich to protect the poor from the iron grasp of despotism ; for when its victims are exhausted in the lower circles, there is no assurance but its ravages will be continued in the upper; for, when once set in rcotion, it will continue to move till a succession of vic- tims fall ;"- and then follows some sentences which I need not read to you. It proceeds to say, " Liberty or Death is our motto ; and we have sworn to return home in triumph, or return no more ;" and this manifesto bears to have been issued by order of a Committee of Organization, for form- ing a Provisional Government that is, by a Committee who had it in their contemplation to supersede the whole Consti- tutionthe House of Commons ; all the judicial establish- ments ; every thing on which the happiness of the country rests ; and to substitute in the place of them a Provisional Government, devised by unknown individuals, who chose, as their instruments for accomplishing that prodigious re- volution, persons of the condition of the prisoner at the bar. S16 Gentlemen, it will be proved further to you, that the pri- soner, at a period prior to this open conflict with the King's troops, was actively engaged in the procuring and prepara- tion of arms, actively engaged in the procuring, purchasing, and preparation of pikes; that weapon which, it appears, was used with no slight effect in the conflict which after- wards took place. Gentlemen, it will not do to say that the unfortunate circumstances of the country, the depression of the manufacturing classes, is any apology or alleviation of such proceedings. If such topics are stated, and it is pro- bable they may be stated, I apprehend, that, so far from any justification, they furnish grounds to prove what was the ge- neral object of the parties so engaged. But what can you or any man conclude, if an armed multitude are found to be assembled, and who state to you that they are so assembled because they are oppressed, because the government of the country is such, that due provision has not been made for the class to which they belong ? Why, the conclusion to be drawn from it, if we are to go to inferences from circumstan- ces of that kind, is, that they are discontented and dissatisfied with the order of things ; they are impressed with the con- viction that they cannot be worse by any change that can be accomplished, and that they are to look for some division of property, or for some advantage or other, in the total sub- version of the present order of things. Gentlemen, there is another document of evidence to which it will be necessary also to refer, as furnishing proof of the purpose, as giving you distinct information as to the ge- neral object they had in view, and that document of evidence is the declaration of the party himself. It is indeed in this case a matter of no importance whether the document is found- ed upon or not, because I do conceive that the case is la- mentably and indisputably made out without its assistance Still it is part of the law of the land, that every man placed in circumstances in which he is suspected of a crime, is, in the first place, subject to an examination by a judicial po- lice That institution, no doubt, contains some disadvanta- ges to every guilty man, but it is accompanied by great ad- 317 vantages to those who are conscious of their innocence, and who are really innocent and, considered as an instrument of justice established for these two purposes, the establish- ment of innocence, and the conviction of guilt, I do not he- sitate to say it is our duty to found upon it, and that it is your duty to proceed upon it, and that it cannot be stated with any propriety or truth, with reference to the admi- nistration of justice, as an unfavourable kind of evidence, or as one not entitled to full attention. That declaration will be read to you ; and it expressly and fully explains that the purpose of the prisoner was to subvert the constitution of Parliament. Gentlemen, upon the general complexion of the Treason existing in the present case I need scarcely say one word. Treasons there have been, and rebellions there have been, in times that are passed ; but those have been characterized and palliated, in so far as it is possible for Treason to be palliated, by their connexion with some of the nobler sym- pathies and higher principles of our nature principles and sympathies most treasonably and criminally misguided, no doubt, but still principles and sympathies connected with the best interests of society. In the case before you it is vain to look for any redeeming quality here it is beyond con. tradiction clear, that nothing else was in contemplation but the destruction of our ancient monarchy ; the extinction of all its ancient splendour ; the destruction of the constitu- tion of Parliament ; the destruction of all those institutions upon which our domestic happiness, and the superstruc- ture of our national grandeur, have been built, which never have been surpassed upon the face of the earth, and which, I trust, we shall never shrink from defending, whether in the field, or in the calmer, but no less responsible, duties of the administration of justice, either in your capacity of Jury- men, or any other capacity in which we may be called on to perform our duty. With these observations, I leave the case in your hands; the more important part of the duty of the Public Prosecu- tor is done when he brings persons such as the prisoner to 318 the bar, and throws them on the determination of a Jury ; and the determination you shall come to, whatever it may be, we have no doubt will be such as the justice of the case, and the evidence to be adduced, will be found to warrant and demand. 319 EVIDENCE FOR THE PROSECUTION. ELLIS HODGSON, Esq. sworn. Examined by Mr Serjeant Hullock. Q. You are a Lieutenant in the 10th Hussars ? A. Yes. Q. At what time of the morning of the 5th of April did you arrive at Kilsyth ? A. About half past five. Q. Were you accompanied with your troop ? A. By a squadron of the 10th. Q. I believe you had gone from Stirling that morning ? A. Yes. Q. How soon after that were you induced to proceed from Kilsyth to some other place ? A. About an hour and a half, I consider, or two hours, not more. Q. Had you received any information before you set off* from any of your own men ? from a person of the name of Cook, for instance ? A. Yes, we had. Q. Do you know a person of the name of Baird in the Yeomanry cavalry? A. Yes. Q. Had you seen him before you set off that morning ? A. Yes, we received information from him too. 320 Q. Was it in consequence of the information you deri- ved from them that induced you to set off again from Kil- syth ? A. Yes, it was. Q. With what number of men of your own regiment did you proceed, and with what number of the Yeomanry ? A. Sixteen of the 10th Hussars, and, I think, about six- teen of the Yeomanry ; I am not positive to the number of the Yeomanry. Q. Did you proceed with your own troop horses ? A. About ten or eleven of my party were mounted on the horses of the Yeomanry. Q. Did you proceed on your own horse ? A. I was on a horse belonging to the Yeomanry ? Q. What was the reason of your quitting your own re- gimental horses ? A. They had had a very quick march in the morning, and I wished to save them as much as possible. Lord Justice Clerk. The horses being tired. A. They were not tired, but I thought they might be if they had much more work. Mr Serjeant Hullock. Had they performed a march the preceding day to this place ? A. Yes, they had. Q. Was the march from Stirling, on the morning of the 5th, to Kilsyth, performed with more rapidity than usual ? A. Yes, it was it was a forced march. Q. What time did you quit Stirling, do you remember? A, No. I do not know exactly. Q. Have the goodness to state to us the course of your progress from Kilsyth to Bonnymuir ? A. We proceeded in the direction of Falkirk, and recei- ved information from the people of the country in what di- rection a party of armed men were gone. Q. In consequence of the information which you received in your progress, did you march towards Bonnymuir ? A, Yes, from the information we received from the coun- try people. 321 Q. Did you see any armed men in the course of your march ? A. When we had gone about nine miles, we saw a body of men armed, at not so much as a quarter of a mile dis- tance. Q. Of what number might that body whom you saw con- sist ? A. I fancied about twenty, or a few more or less I sup- pose that was about the number when I saw them. Q. Could you ascertain at that distance the number of their arms ? A. I saw that they were long poles pikes, I fancied. Q. Were they upon a road, or off the road, or where were they when you first saw them ? A. They were on the muir, a few yards from a wall fifty or a hnndred yards. Q. When you came in sight of them, did you accelerate your movement ? A. Yes, we went a little quicker, but we had not been going very quick before that we increased the pace a little. Q. Do you recollect the actual pace to which you in- creased ? A. We put our horses into a canter we had been trot- ting and cantering the whole way, and we put them into a canter ; but the ground was bad, and we were obliged to. go round we could not go in a direction straight to them. Q. How soon have you reason to believe the men saw you? A. I fancy we saw each other about the same time I know they cheered at the time I saw them we all saw them within a moment or two. Q. Did that cheering take place as soon as they saw you, do you suppose ? A* Yes. I do not know whether they consulted together a little first it struck me they saw us, and then consulted together, and then cheered and came down to meet us. Q. Then, according to your observation, previous to this cheer, a momentary consultation took place ? VOL. i. x 322 A Yes ; it was at a distance, so that I could not say, but it struck me so. Q. It did not therefore appear to be the spontaneous im- pulse of the moment, but the result of a conference ? A. It struck me so. Q. At what distance do you think you were when you first saw them ? A. I should think not a quarter of a mile half a quar- ter, or a little more it was across a muir. Q. After this cheering, which took place in the way which you have described, did they do any thing, and what ? A. After the cheering they ran down towards us, and stationed themselves under the wall, and waited till we came up. Q. By going down towards that wall, and stationing themselves behind that wall, did they come nearer to you ? A. Yes, they did. Q. If they had wished to have avoided you they would have gone the other way I A. Oh yes. Q. I think you stated something about the difficult ground that you had to traverse ? A. Yes, we could not go straight over the ground ; it was so boggy, and one of the Yeomanry directed us he knew the ground we had to make a turn rather to the left. Q. If they had so minded, by going another way, could they have got beyond your reach ? A. They might have escaped very easily, I think, by running away when first they saw us ; the ground was so bad we could not have taken more than one. Q. Then, in your judgment, they might, if they had so thought proper, have got away, without coming in contact with you ? A. Oh, decidedly so ; one or two of them might have been overtaken, but certainly not the whole body. Q. The main body would have escaped ? A. Yes ; at least they would have thrown away their arms, and we could not have identified that they had been with arms in their hands. 323 Q. Upon their taking up this position behind the wall, what did they do ? A. When we came within fifty or sixty yards from them, they fired two or three shots at our party. Q. Will you have the goodness to state in what position or state your party were in ? you were heading them, I suppose ? A. I was in front of them, and I was advancing towards the wall at the time they fired. Q. In what way were you advancing ? A. Not in very regular order, the ground was so bad. Q. You were not the only person exposed in front ? A. No ; there were two or three in a line nearly with me. I believe I was in front of the whole but they were very near me. Q. And so bearing down upon the wall this fire took place ? A. Yes. Q. You cannot say whether that fire proceeded from pis- tols or muskets ? A. I cannot say what arms they were. Q. Could you ascertain whether the pieces were rested on the shoulder or on the wall I A. I fancy they were rested on the wall we could only see their heads. Q. Was that a good position ? A. A very good position. Q. A good military position ? A. A very good position. Q. Then, with that protection, and so concealed, the first fire took place ? A. Yes. Q. Was that succeeded by another before you reached the wall ? A, There were two or three shots; two I am positive about, and more, I think, I am not certain. Q. Did those shots, as far as you could perceive, come from different parts of the wall ? A. Yes, they came from different people. 324 Q. Were they from different parts of the wall, or were they all close to each other ? A. They were not all together one or two from diffe- rent points perhaps two or three yards, but it is impossi- ble to say what distance they were they were not close to- gether. Q. Did you distinguish the sort of arms with which the general body of them were armed at that time ? A. Principally pikes j I thought I saw two or three mus- kets ; I did not see more at the time. Q. In what way were their pikes held or carried, at the time when they took up this position, do you remem- ber ? A. No, I do not know what position their pikes were in on that side of the wall, I know on the other. Q. You kept advancing ? A. Yes. Q. Did you address yourself to them ? A. I spoke to them, and ordered them to lay down their arms. Q. More than once ? A. I did it six or seven times. Q. Did you do it with a voice sufficiently loud to enable the whole of the party to hear you ? A. Quite so. Q. You are quite sure, if a man could hear at all, he must have heard what you stated ? A. Oh yes, I am quite positive. Q. Did what you said produce any visible impression upon any of the party ? A. They did not lay down their arms, but they ceased firing j at the same time I had ordered my own party to cease firing ; after ordering them to lay down their arms, I ordered my men to cease firing. Q. In consequence of their not attending to what you stated with respect to their laying down their arms, did you proceed over or through the wall ? A. I went through the gap in the wall with my party. Q. Did that carry you to the middle of their line ? 325 A. They were on the right of us; it was at a corner of the wall. Q. State the manner in which they received you on go- ing through that gap ? A. Their pikes were presented to us, and their muskets too ; I do not know how many, but I am positive about one. Q. You say pikes were presented ? A. Pikes were presented as infantry would receive caval- ry in an action. Q. In your judgment, was the mode in which these pikes were placed for your reception calculated to resist cavalry ? A, The way in which they were presented was, but not the way the men were placed ; if they had been closer toge- ther they could have made more resistance. Q. Were they, considering the loose and scattered man- ner in which the men then appeared, placed in the best way in which they could be for resistance ? A. Oh ! decidedly so. Q. Were you yourself personally resisted by any one of that party ? A, The party who appeared to be a leader of the party, presented a short musket at me ; from the time I first rode up to the wall it was presented at me. Q. The party who appeared to be the leader of the party presented that to you ? A. Yes ; and it was presented to me the whole time. Q. Did he follow you with his eye and his piece ? A. Yes. Q. Did the man with that musket continue stationary, and merely level his piece at you as you would follow a bird flying, or move on ? A. He moved on, and kept his piece pointed towards me. Q. How near might that piece be towards you ? A. When I rode up to the wall, it might be about 12 yards, and after that it would be two yards. Q. Then you would have an opportunity probably of distinguishing the man ? A. Oh yes, I know the man, that is the man, (Baird.) 326 Q. You have no doubt of that ? A. Oh no. Q. Did you say any thing to him particularly during any part of the time ? A. I do not remember saying any thing to him. Q. Of course you would take care of yourself, did you endeavour to shoot at him ? A. Yes, I endeavoured to fire my pistol ; it flashed in the pan, and did not go off. Q. You were very near him ? A. Yes, within a yard. Q. He must have been killed if the pistol had gone off? A. He must. Q. You do not know whether he drew the trigger of his piece or not ? A* I cannot swear to that. I have been told so, but I do not know that he did. Q. Do you remember any other person coming near you with a pike or any other weapon ? A. Yes. Q. You were wounded yourself? A. I was wounded through the hand. Q. Do you know the person ? A. No, I do not know the person ; I was engaged with another man at the time ; there were two on one side of me, and I was engaged with one on the other side. Q. Were those two pikemen ? A. I am not positive. Q. Did the man who wounded you make a thrust at you? A. They thrust, both of them. Q. Were there two men thrusting at you or your horse at the same time ? A. There were, just at the same time. Q. I believe the only wound which you received was in your right hand ? A. It was. Q. Was your horse wounded by the other man ? A. He was. 327 Q. Did he receive more than one wound ? A. No ; he was wounded in the side. Q. In the flank or the quarter f A. Close to the quarter, in the ribs. Q. The horse died, I believe ? A. He died that night. Q. Were you attacked by any other persons besides those two, and that musketeer f A. No, the attack was mutual; I believe we attacked them and after that I received a wound, and my horse too. Q. Were any others of your party wounded ? A. Serjeant Saxelby, in two places. Q. I believe the serjeant is here ? A. He is. Q. The conflict did not last long after this ? A. No, we were in the middle of them, and they threw away their arms, and some ran away, and others remained. Q. During the time that the conflict continued, after you got through the wall, do you remember whether any other shots were fired by the persons whom you was skirmishing with, or was it all confined to pike work? A. Some shots were fired, but I do not know from which party, whether from mine or the other party. Q. That person whom you have pointed to was taken, was not he ? A. He was. Q. Had he that gun in his possession I A* I did not see him taken, for I had passed him ; but when I turned round he was standing without arms. Q. Who had him in charge, do you remember ? A. Not any particular individual he was in charge of the party that remained, that had not gone after the others- Q. Did you see him as soon as you saw any person ? A. I did, as soon as I turned round, and looked for the prisoners. Q. Upon your first arrival ? A. Yes, I did. Q. Did you see him from that time until the time that 328 you got through the wall, and snapped your pistol had you him always in your eye ? A. Yes. Q. Did he, from his conduct and demeanour, induce you to believe him the leader, or that he was only a follower ? A. I thought him the leader. Q. From what you observed ? A. Yes. Q. Can you recollect what position he had when they came down the hill ? A* I cannot speak positively ; I think he was in the centre of the party, but I am not positive about it. Q. Could you ascertain any other persons that were there besides him ? A. Yes, some of them. Q. Can you remember the name of any of them ? A. I have heard their names since I have seen them in Edinburgh. Q. Did you see a person here yesterday f A Yes, Hardie. Q Did you see him in the battle ? A. I am not certain whether I saw him before he was taken or not. Q. You saw him a prisoner ? A. Yes, immediately after he was taken. Q. I believe you accompanied them the greater portion of the way from Kilsyth to this place ? A. Some part of the way ; a little part of the way ; the first part. Q. Did you see Hardie in the first part ? A. Yes I did he walked some part of the way arm and arm with Baird. Q. Did they appear to be acquainted ? A. They did, they appeared to me to be great friends. Q. I believe they were lodged in the Castle ? A. Yes. Q. Can you ascertain any more of them ? A. Yes, I know some more of them. Q. Just see if you can point out any more ? 329 A. That is one Murchie; and Gray, and Harland, Johnstone the boy, I remember their faces now, but whe- ther it is from have seen them in Edinburgh Castle, I do not know. Q. I only ask you to such individuals as you can remem- ber seeing in the field ? A. I have seen them so often since, it is difficult to say whether I saw them there or in the Court ; there are faces there familiar to me now, from having seen them two or three times since,, but those men I mentioned I am positive I saw at the time. Q. Actively employed ? A. Yes, they were employed, and one man I thought was a leader, from being more active than the rest ; that was Baird. Q. How was Baird dressed that morning, do you remem- ber? A. He was dressed in a brown shooting jacket, a black silk neckcloth, and worsted trowsers and boots ; he was ra- ther better drest than the rest of the party, he and Hardie. Q. The men who were lodged in the Castle here were all taken in that field ? A. Yes, at that time. Q. Eighteen in number ? A. There were eighteen lodged, and one was left on the field ; he was so much wounded he could not be removed at the time. Q. You say that Cook, one of your men, came to Kil- syth, before you quitted Kilsyth that morning again ? A. Yes, he did. Q. Did he shew you any paper ? A. Yes he did, he shewed me an Address from the Pro- visional Government, I think it was signed by Q. Did you keep that Address from that time, or return it? A. I returned it to him at the moment, and then asked him for it when we had got about a mile from Kilsyth. Q. That was before you got to Bonnymuir ? 330 A. Yes, I think we had not gone a mile before I asked him for it. Q. In the way between Kilsyth and Bonnymuir ? A. Yes. Q. You got it again from Cook ? A. Yes. Q. How long did you keep it in your possession after that ? A. I kept it in my possession that day, and in the even- ing gave it to Colonel Taylor, who commanded the regi- ment. Q. At this place ? A* At Glasgow. Q. Did you go the same day to Glasgow ? A. I went the same day to Glasgow, to report it to the Lord Advocate and Colonel Taylor ; I went to mention the particulars I had reported it. Q. That night you handed over the Address which you received from Cook to Colonel Taylor f A. Yes. Q. How soon after did you receive it from Colonel Taylor ? A. The next morning ; I received it from him in conse- quence of a communication from the Lord Advocate. Q. Look if that be the Address which you so received from Colonel Taylor, (handing a paper to the witness.) A. Yes, that is the Address I received from Colonel Taylor. Q. Did you say that you read the Address that you re- ceived of Cook before you gave it to Colonel Taylor ? A. I looked at it when first Cook gave it me, to see what it was, and I had seen a copy of it in Stirling the day be- fore. Q. What ! posted up ? A. It had been posted up, and was taken down. Q. Can you call to mind whether, after you received it the second time, you read it again ? A. No, I do not think I did, we were going very quick, and I put it into my sabre tache. 331 Lord Justice Clerk. After Cook gave it to you on the road, did you read it before you gave it to Colonel Taylor? A. It is so long since that I cannot charge my memory whether I read it then ; but at the time I gave it to Colonel Taylor I looked at it, and read part of it with him, 1 re- member that ; I am quite certain that the paper I received from Cook I delivered to Colonel Taylor. Q. And you believe that the paper you received from Colonel Taylor was the paper you gave him the night be- fore? A. I have every reason to suppose it. Q. Do you believe then that that is the paper that you received from Cook under these circumstances ? A. Yes, I am almost convinced of it, but I cannot swear to it. Q. The reason you cannot swear to it correctly is A. From its being out of my hands for a few hours I am certain that was the nature of the Address ; that the words were the same nearly ; it was the sort of Address. Q. Did you make any observation as to any thing upon the Address when you got it from Cook ? A. I saw the signature and the beginning of it ; I did not read it through. Q. And, when you delivered it to Colonel Taylor, it was read by him and you together, probably ? A. Yes, I am positive some of it ; I think the whole of it. Q. What was your reason for giving it to Colonel Tay- lor? A. He wished a copy. Q. Was this the same night that you got to Glasgow ? A. Yes, it was the night. I am not certain whether it was in the morning early or that night. Q. It would be morning before you got there ? A. No ; I saw him for two or three hours that night ; and we were up late ; and whether I gave it him that night or the next morning early, I am not certain. I think he had it in the night ; I am not certain. 332 Q. You accompanied the prisoners taken at Bonnymuir part of the way, and you then stopped at some bridge to write letters ? A. I accompanied them half a mile to an inn, to write dispatches, and I overtook them again before they got to Stirling. Q. Were the arms that were taken all lodged in the Castle at the same time with the prisoners ? A. Yes, they were. Q. Do you remember the number of pikes ? A. There were sixteen pikes, a pitchfork, and a pike- handle without a head, five muskets, and two pistols. Q. Do you happen to know of your own knowledge whe- ther any ammunition was taken in the field ? A. I did not see it taken from the prisoners. I saw a bag of ammunition there that they told me was taken. Q. Serjeant-major Warren took that ? A. Serjeant-major Warren told me, I think, that he had searched the prisoners when I came up. Q. You did not see any of their persons searched ? A. No, not any. Cross-examined by Mr Jeffrey. Q. How many men went with you in your party ? A. Sixteen of my own regiment, and, I think, the same number of the Yeomanry; I am not certain. Q. All fully armed, of course ? A. Not fully armed, we had not our carabines; being mounted on the Yeomanry horses, we had only their arms. Q. Pistols? A. Yes, and swords. Q. I think you say, that, from the observation you had, the party on the hill amounted to twenty or twenty-four ? A. About twenty. Q. You got eighteen prisoners ? A. Nineteen, and one escaped. 333 Q. You do not know whether any of them escaped i A. I do not know. The greater part of what I saw we took. Q. Of those who came down the hill ? A. Yes. Q. You went with a view of taking them, I suppose ? A. Oh, yes. Q. You have mentioned, I think, that you called repeat- edly, when you came nigh, for them to surrender, and lay down their arms ? A. Yes. Q. Did they make any answer ? A. I think the word " treat" was used, and two or three other words " we will treat with you," or, " will you treat with us ?" or something of that kind. Q. Do you know who used those words ? A. No, I do not. Q. Was it Baird who used those words ? A. I should say not positively it was some other man of the party. I am positive it was not Baird that spoke those words. Q. Baird, you think, levelled his piece at you from the first time he observed you, and continued to keep you in his eye ? A. Yes. Q. That was when the wall was between you i A. Yes. Q. Did he continue in the same attitude after you got through the gap ? A. Yes, till I presented a pistol. Q. Did you hear him say any thing at all during that time ? A. No. Q. No words passed between you and Baird at A. No, I do not think there did. Q. Did you observe how Baird gave in at last ? A. No, I did not ; he had surrendered when I turned round, and he was standing without any arms in his hand. 334 Q. A very short time elapsed after you got through the wall till it was all over ? A. A very short time ; I do not know how many minutes, but not many. Q. There were some shots fired before you fired ? A. Yes. Q. Were those shots fired before you called to the ene- my, as we must call them ? A. Yes, they were. Q. Was there any firing after you called to them to lay down their arms ? A. There was no firing till the skirmish, when we came to close quarters, and then there was some firing from the one party or the other ; I cannot tell which. Re-examined ty Mr Serjeant Hullock. Q. You have been asked if you were fully armed when you set off? A. Yes. Q. You were not so ? A. We were not as xve are with our own horses ; there is a great difference between our horses and the Yeomanry horses. Q. If a man has been in the array for four or five years, he can distinguish between the Hussars and the Kilsyth Yeomanry ? A- Certainly. Q. And probably a man with a military eye could distin- guish a troop armed with carbines from a troop without carbines. A. I should think so, when they were near him as soon as he could see them distinctly. Q. Are your regiment well dressed when they are mount- ed? A. Yes. 335 Q. You look grander than the Kilsyth troop ? A. There is a great difference in the appointment and arms ; we have white sheepskins, and they have no sheep- skins at all ; and there are a great many distinctions. Q. Are the distinctions so great as to enable persons, at the distance you first saw those persons at, to distinguish whether it was part of the troop of the Hussars, or part of the Kilsyth Cavalry ? A. I cannot answer that question. I could have told my- self. We had some of our own horse with us. Mr Jeffrey. How many of your party had their own horses ? A. I think, five or six. Mr Serjeant Hullock. I do not object ; but you have no right to put the question. Lord Justice Clerk. I will put any question you wish, Mr Jeffrey. Prisoner, have you any question you wish to suggest ? Prisoner. No, my Lord. A Juryman. How many yards distant might you be when the cheering took place ? A. It was when first we saw them ; we were nearly a quar- ter of a mile off. Q. Who cheered first ? A. They all cheered together ; there was no cheering ex- cept from their party. Q. There was no cheering on the part of the Yeomanry ? A. No, not at all ; there was only cheering from their party, that were at a distance of nearly a quarter of a mile when we first saw them. Q. And that cheering was entirely on the part of the pri- soners ? A. Entirely on the part of the prisoners. 336 Mr JOHN JAMES Examined '"Zy Mr Drummond. Q. Do you remember going out with Lieutenant Hodg- son and a party of cavalry, in the beginning of April last, in search of a party of people ? A. Yes. Q What day in April ? A. The fifth of April. Q. About what time ? A. About half past eight. Q. Where did you go ? A. We went along the road till we came to Bonnymuir. Q. How far is Bonnymuir from Falkirk ? A. About four miles. Q. You went off the road there ? A. Yes. Q. You got information on the road of the way the peo- ple went ? A. Yes. Q. You went off the road at Bonnybridge ? A. Yes. Q. Where did you see the people first ? A. About half a mile off, (on a height,) or rather more Q. How far were they from you when you saw them first ? A. About half a mile, straight road. Q. You advanced ? A. Yes. Q. Did they begin to move then ? A. When we got pretty near them, they came down from the height, and took a place behind a stone-wall. Q. How far were you from them when they began to move? A. About a quarter of a mile, I should think. Q. Did you see what they did at the time they began to move ? A. Some of them took off their hats, and appeared to be cheering ; they waved them in the air round their heads. Q. Did they cheer ? A I heard a sort of sound ; I could not say what it was. Q. Then they came down ? A. They came down, and took a place behind this stone- wall. Q. Did they remain at the wall till your party came near them ? A. Yes. Q. What did they do then ? A, When we had got about seventy yards, they fired a couple of shots. Q. Over the wall? A. Over the wall. Q. There was no firing from your party before this ? A, No, none. Q. They fired about a couple of shots over the wall what did your party do then ? A. We road in a gallop, as fast as possible, close to the wall, and then we got through a gap in the wall ; and at that time Mr Hodgson desired them to lay down their arms. Q. Did they lay down their arms ? A. They did not ; they refused to do so. Q. Did they attempt to prevent Mr Hodgson and the party from coming through the gap in the wall ? A. They did. Q. In what manner ? A. With their pikes. About eight of them, I think, formed at the gap, and attempted to prevent our getting through with their pikes. Q. How did they present their pikes ? A. Some of them were upon their knees presenting them. Q. Did they receive the cavalry, at the time they were attempting to get through the gap, in the way infantry re- ceive cavalry ? VOL. r. Y 338 A. Some of them did those that appeared to be trained to that. Q. Each man was kneeling upon one knee, I suppose ? A* One knee. Q. Did you pass through the gap ? A. Yes, I did. Q. Did any of the party appear to you at the time to be the leader of the rest ? A. Yes. Q. Can you point him out there ? A. Yes ; John Baird appeared to be the leader. Q. Is that the man, (pointing at Baird.) A. Yes. Q. He appeared to you, from his conduct at the time, to be the leader of the party ? A. Yes. Q. What did he do at that time particularly ? A. He was at the head of the party, with a blunderbuss or short gun in his hand, and at that time he was present- ing it at Mr .Hodgson levelling it. Q. At what particular time ? A That was after we got through the gap. Q. Immediately after you got through the gap you ob- served him immediately after you got through the gap level- ling this short gun at Mr Hodgson ? A. Yes. Q. Did he merely take it up once and present it at him, or continue to do so ? A. He continued to do so for some minutes, I think. Q. Had Mr Hodgson a pistol in his hand at any part of that time ? A. Yes, he had a pistol he drew from his holster. Q. What did he do with it ? A. He presented it at Baird; it flashed or snapped, I do not know which it did not go off. Q. After your party got through the wall, what happen- ed then ? A. We made a kind of charge at them, and they gave way. Q. Can you point out any of the rest there, that were there at that time ? A. Murchie. Q. Point out the individual ? (The witness pointed him out.) Q. Which other ? A. M'Culloch that boy that is standing up there, (John- stone.) Q. What did you observe the boy doing particularly ? A. I did not see him until after ; when I saw him first he was lying down among the heather. Q. This was after the business was over ? A. Yes. Q. Did he pretend to be wounded ? A. He pretended to be dead or asleep, I did not know which. Q. What did you say to him ? A. I told him to get up, and he did so. Q. Do you remember a person of the name of Hardie there ? A. Yes. Q. Did you see him on the way afterwards after the fight was over, in the way to Stirling F A. I do not remember; I remember him perfectly there. Q. He was one of those that were taken prisoners ? A. Yes. Q. All those that were taken prisoners were brought to Stirling ? A. Yes. Q. You came along with them ': A. Yes. Lard Justice Clerk, There was one wounded man left on the field ? A. There was. Mr Drummond. Did any escape ? A. A good number escaped. Q. What arms were taken ? A. There was a number of pikes, and some muskets and pistols, and a pitchfork. 340 Q. Any ammunition ? A. Yes, there was some ammunition in a bag in a whitish coloured bag. Q. What sort was it ball-cartridge ? A. Ball-cartridge, and some powder also. Q. Did you see some of the prisoners searched ? A. Yes, Q. What was found ? A. Ball-cartridges in their waistcoat pockets. Q. The persons of how many did you see searched ? A. Two or three, I think ; not more. Q. And they had all ball-cartridges ? A, Those that I saw searched had. Q. How many each ? A. Some of them had three or four. Q. Ball-cartridges ? A. Ball-cartridges. Q. That ammunition and the arms you have spoken of, were taken to the Castle and lodged there ? A. Yes. Q. Would you know any of them again ? A. I think I would know some of them. Q. Come over here and look at them. (The witness examined the arms.) A. I know these two pikes. Q. Do you know that those were two of the pikes taken at Bonnymuir, and brought to Stirling Castle ? A. I know that, and I saw one of this shape, (another pike.) This is the bag. Lord Justice Clerk. That is the bag that was taken at Bonnymuir ? A. Yes. Mr Drummond.Is that your name upon the label ? A. Yes, it is. Q. Do you know that to be the same ? A. Yes. Q. Open it, and see what it contains ? A. This is powder, and these are the balls. (Producing- them.) 341 Q. Do you know any of the guns again ? A. This one I know, (producing- it.) Q. How do you know it from its general appearance ? A. Yes, from the appearance of it. Q. Do you remember where you saw that particularly ? A. I saw it in the hand of John Baird. Q. Is that the one that he presented at Mr Hodgson ? A. The one. Q. Look at the lock if you please ? A. That is the gun. Lord Justice Clerk. Has the prisoner any question he wishes to put ? Prisoner.- No. ROBERT BOWLER, private in the 10th Royal Hussars sworn. Examined by Mr Hope. Q. You are in the 10th Hussars ? A. Yes. Q. You belonged to that regiment in the beginning of April last ? A. Yes. Q. In the King's employ of course receiving the King's pay? A. Yes. Q. Were you at Kilsyth, with a part of that regiment, in the first week of April ? A. Yes. Q. Do you remember upon what morning you went there ? A. I do not recollect the day of the month ? Q. Did you leave Kilsyth along with the party under the command of Lieut. Hodgson, to go in quest of some people that had been seen in the country ? A. Yes. 342 Q. You went to a place called Bonnyrauir, some distance off? A. Yes. Q. Did you see any party of men when you arrived there ? A. Yes. Q. How far were you off when you first saw them ? A. A long distance ; I cannot exactly say. Q. You went up towards them ? A. Yes. Q. State to us what took place. Did they observe you ? A. Yes, and they ran down towards the wall, and ad- vanced to us. When we came within the space of fifteen or twenty yards, they fired at us ? Lord Justice Clerk. At your party ? A. Yes. Mr Hope. You continued to advance ? A. Yes. Q. Did you hear Lieut. Hodgson say any thing to them, and what ? A. He went up to them and told them to lay down their arms, and they would not do it. Q. Did you advance nearer to them than that distance at which you say they fired at you ? A. Yes, we went close to the wall. Q. At the time you advanced close to the wall, did any particular person attract your attention ? A. The one which Mr^ Hodgson spoke to. Q. How many might there be upon the whole down at the wall ? A. I should think there were about thirty, or nearly thirty. Q. Will you look at the bar, and see whether you see the man there to whom. Lieut. Hodgson's address appeared to be made ? //. I suppose he addressed it to Baird. Q. Is that the man now standing up ? A. Yes. 343 Q. What followed after this observation ? A. Baird levelled his piece at Mr Hodgson, and it did not go off. Q. Had you observed whether or not his piece was le- velled at the officer before he desired them to lay down their arms, or whether it was levelled at him afterwards ? A. Afterwards. Q. Did your attention continue to be directed towards that man ? A. At that present time it was. Q. That was before you got through the wall ? A. Yes, that was before we got through the wall. Q. What followed after this ? A. Some of our men fired at the gap, and with that some of our men got in. Q. Had any of the party been from the first stationed at that gap, or did they go towards the gap when Lieutenant Hodgson, or some of your party, attempted to get through ? A. When we got up to the gap, some of them were there at the time, but they advanced from the hill with the others, I believe. Q. And then, you say, that after the firing at that gap the cavalry got through ? A. Yes. Q. Was your attention directed to any particular person after you got through the gap ? A. One lad. Q Do you see him here ? A. Yes, that is the lad, (Johnstone.) Q. Did you observe the same person after you got through the gap, who had been previously aiming at Lieutenant Hodgson ? A. No, I did not observe him afterwards. Q. When you observed him previously when he had le- velled his musket at Lieutenant Hodgson, and when you say it did not go off, what did he do then ? A. He went up to the wall with it afterwards, and whether he knocked the cock off it afterwards I cannot say ; but he struck one of the Hussars on the thigh with it afterwards. 344 Q. Did he appear to be knocking his musket against the wall? A. Yes. Q. But you cannot say whether he knocked the cock off or not. A. No. Q. What did he do with the musket afterwards ? A. He struck one of our regiment on the thigh with the butt of the musket. Q. Was that before any of you got through the gap ? A. No ; after we got through the gap, directly as we got through the gap, I was not through myself at the time, but I saw it done. Q. Was Baird near the gap at that time when he struck the soldier ? A. Yes. Q. Did you observe whether at the time that the musket was presented at Lieutenant Hodgson, Baird drew the trig- ger ? A- No, I did not observe that. Q. Was it immediately after the musket was presented that he went towards the wall to knock it in the way you have described ? A. Yes, soon after, in a minute or so. Q. In what way did he knock it ? A. He got hold of it by the barrel, and was knocking it on the wall in this way. (describing if). Q. Knocking the stock of it ? A. No. The catch of it. Q. Was that the attitude of a person who appeared to be sharpening the flint ? A. No. I do not think it was any thing of that kind ; I cannot say. Q. For what purpose did he appear to be doing it ? A. To knock the cock off, so that it might not be of any more use, I thought. Q. You said some men were standing at the gap opposing the cavalry at the time your party fired on them and got through, how were they opposing them ? 345 A. There were two on each side with pikes, one higher than the other. Q. What do you mean by that ? A. In this direction, one above another. (Describing it.) Q One man kneeling ? A. No. They were both standing behind the wall. Q. And one man was higher than the other ? A. Yes, across in this way, so as to keep us out. Q. Were there more men about the gap than the four, two of whom were upon each side ? A I did not see any more. Lord Justice Clerk. Were the pikes slanted towards the opening or across the opening ? A. Across the opening. Q. So that they might take any body in the side as they passed, or any horse ? A. Yes. Mr Hope. At the time that some of your party fired at the gap, was it to enable them to get through, and to clear away the obstruction of those persons ? A. Yes, it was. Q. Do you know, or does your observation enable you to state, whether the whole firing on your side was directed to- wards that gap, before ycu got through ? A. No. Q. It was not ? A. I do not know whether it was or not. Q. Did you observe any other shots fired than in that di- rection ? A. There were more fired towards the wall, I believe from our men, and likewise from them. Q. Were any shots fired by either side, and by which, if any, after you got through the gap ? A. There was a lad that fired several times, I cannot say that I saw whether any body else did or not. Q. After you got through the gap ? A. Yes. - Q. Do you observe the lad at the bar ? A. Yes. 346 Q. Which? A. Johnstone. Q. Did he re-load ? A. Yes, he fired several times before any of the men got up to him. Q. What was it, a musket ? A. A pistol. Q. Look at the men at the bar, and ascertain whether you observed any other of them there upon that occasion ? A. I recollect seeing them on the road coming out of the field ; but I did not see any of them in the field with arms. Q. Did you see any without arms ? A. Yes, I saw the whole of them without arms. Q. How were they disarmed ? did you observe whether they were disarmed as they surrendered, or whether they threw them way ? A. The chief part of them threw them away ; what I saw threw them away ; they took them as far as they could, and when they found they were near being overtook, they threw them down. Lord Justice Clerk. Then they were taken prisoners ? A. Yes. Mr Hope. Did you observe any of them searched ? A. No ; I was round the field when they were searched. Q. Did you see any bag during the skirmish ? A. No ; I saw it after the skirmish was over, but I did not see it on any of the prisoners. Q. Did you observe a person, whose name you afterwards ascertained to be Hardie, there ? A. No ; I do not recollect him. A Juryman. Should you know him if you were to see him ? A. I might ; I do not know his name. Lord Justice Clerk. Prisoner, have you any questions to put to this witness ? Prisoner. No. my Lord. 347 WILLIAM SAXELBY sworn. Examined by Mr Serjeant Hullock. Q. Are you a Serjeant in the 10th Hussars ? A. Yes. Q. That is the King's Own regiment ? A. Yes. Q. Were you at Bonnymuir on the 5th of April ? A. Yes. Q. Had you marched from Stirling that morning ? A. Yes. Q. And you accompanied that portion of your troop that went from Kilsyth to Bonnymuir, did you ? A. Yes. Q. Were you upon your own horse, a troop horse, or upon a cavalry horse ? A. My own horse. Q. Do you remember, when you came near the spot upon which afterwards the skirmish took place, seeing the people upon the muir at a distance ? A. Yes. Q. How far off might they be when you first observed them ? A. About a mile. Q. What were they doing when you first saw them, as far as you remember ? were they standing, sitting, or walking, or doing what ? A. Some might be sitting ; it was so far distant, I could not possibly say. Q. Could you distinguish whether they were in motion or stationary ? A. They were in motion. Q. What way were they going, and at what pace, when you first saw them in motion ? A. Part of them were standing. Q. Did they remove to a greater distance from you, or did they advance nearer towards you ? A For some minutes they kept their ground, and after, wards advanced. Q. That is, towards you ? A. Towards me. Q. In what way did they advance towards you ? at what pace ? A. They ran. Q. Did they come close up to you, or did they stop at any place before they came close to you ? A. They ran within some yards of the wall, and then they gave three cheers. Q. Did they come over the wall, or did they continue alongside the wall ? A. Alongst the wall. Q. Did you see in what manner they ranged themselves alongst the wall ? A. Alongst the wall as far as they could extend, not close. Q. What do you mean ? in line ? A. Yes. Q. Of what extent might that be ? A. A hundred yards. Q. Behind the wall you mean ? A. Yes. Q. Do you mean, that the wall was a hundred yards long, or that that was their line ? A. The wall was a great distance, and they might be spread alongst the wall a hundred yards or near about it. Q. Did they outflank you in that way ? A- Yes, we could only come by file. Q. From the nature of the ground ? A. Yes. Q. Did any thing take place, before your party had reach- ed the wall ? A. About thirty yards they fired. Q. When you had reached within thirty yards of the wall they fired ? A. Yes. Q. Can you say what number of shots were fired ? A. They fired two or three at a time. 349 Q. A straggling sort of firing ? A. Yes. Q. Can you tell whereabouts the number of shots fired in the whole might be ? A. Eight shots might be fired, and then we rode close to the wall. Q. Had any firing taken place on your part before those eight shots had taken place ? A. None. Q. What sort of front did your party exhibit in going down to the wall, do you remember ? A. We shewed no front ; we were in file till we came to the wall ; we might extend ten' or twelve yards alongst the wall, but no proper front was shewn. Q. Your officer was at your head ? A. Yes, my officer and myself. Q. You were near your officer ? A. Yes. Q. Did you hear your officer address any thing to the persons behind the wall ? A. He ordered them first to lay down their arms. Q. Did he repeat that order ? A. Yes ; I repeated the order likewise. Q. Were you and he near enough, at the time that you gave those orders, to be heard by the party ? A. Yes. Q. By the whole party, or by only some of them ? A. The whole of them. Lord Justice Clerk. The whole party behind the walJ, you mean ? A. Yes. Mr Serjeant HullocJc.You say, shots, you think, to the number of eight, were fired at your party do you know by what sort of instruments, by muskets or pistols ? A. By fowling-pieces, muskets, and pistols. Q. Were they all armed with muskets, and that descrip- tion of weapon, or what ? A. Some had muskets and pikes too. Q. Were you, at the time your officer and you went down, 350 and so addressed them in the way that you have mentioned, within the reach of their fire ? A. Yes. Q. You were within range of musket shot, were you ? A. Yes. Q. Were you wounded in the action ? A. Yes. Q. When were you wounded ? before you got through, or after you got through the wall ? A. Afterwards. Q. Whence did your wound arise ? a musket-ball or shot, or those instruments ? A. A pike. Q. Did you receive more than one wound ? A. Two. Q. In what part ? A. One in the arm, and a shot in the body. Q. Then you received a pike wound, and a shot wound ? A. Yes, a gun or pistol ; it was a slug. Q. You received the slug in your side ? A. Yes. Q. The officer got through a gap in the wall ? A. Yes. Q. And you went through the gap ? A. Yes. Q. Did you go along with your officer, or immediately fol- low him ? A. I followed him. Q. He went first, and you next ? A. Yes. Q. Upon your approaching the gap in the wall, what species of resistance was offered by the persons on the other side, either by the presentment of pikes, the crossing of pikes, or the presentment of arms in any other way ? A. The presentment of pikes, and muskets covering them. Q. Describe to us what you mean by the presentment of pikes, and muskets covering them ? A. The pikes were set in the position, and three men kneeling down. 351 Q. Were those men kneeling down, with those pikes in that position, immediately opposite the gap ? A. In the gap. Q. Was it practicable for you to get through that gap, without killing the men before you ? A. No. Q. You say that those three men were in that position ; state the position the covering musketeers were in ? A. Standing, presenting to fire if any one attempted to go on. Q. Standing behind those other men ? A. Yes. Q. Presenting their arms to fire ? A. They were on the level for firing. Q. Can you take upon you to say, whether or not any of those muskets were fired, when you made the attack upon the gap ? A. None. Q. Did you receive either of your wounds in the attack upon that place ? A. Yes, the wound in my arm. Q. Did that wound arise from one of those pikemen ? A. Yes. Q.. Did the pikeman by whom you were wounded, make a thrust at you, or was it by your making a charge at him ? A- Making a thrust. Q. In what way did he thrust at you ? did he thrust at you with a view to hurt you, do you suppose ? A. He gave point ; when I went to defend myself he at- tempted to dismount me from my horse. Q. Was it a slight or severe wound ? A. It was not through, but you could observe it on the other side of my arm. Q. Was it done with force ? A. By force. Q. I need not ask you if that wound had taken effect in your body, whether you would have been here or not to- day ; when did you receive your second wound ? A. I cartnot say. Q. But you received it after the other wound ? 352 A. After. Q. Was it in your sword arm that wound ? A. Yes. Q. The pike wound was in your sword arm ? A. Yes. Q. What became of you upon receiving that wound ? A. I stood during the time as long as the rest of my com- rades. Q. But when you received the other, or from whom, you cannot tell ? A. I cannot say. Q. Do you remember the man from whom you received the pike wound, do you think ? A. Yes. Q. Have you seen him since ? A. Yes. * Q. Do you know his name ? A, Not his Christian name. Q. What is his sirname ? A. Baird, (Pointing him out.) Q. That is the person from whom you received your pike wound ? A. Yes. Q. He was one of the three, then, that defended the en- trance into their part of the field ? A. Yes. Q. Had you seen him before that part of the proceeding ? A. Yes, when my officer entered through the gap, he pre- sented a piece close to his side. Q. The same man, therefore, that wounded youwith a pike, had before that time, presented a piece at your officer ? A. Yes, and finding it did not do execution or go off, he threw it down and took a pike in his hand. Q Where did he get his pike from ? A. Lying upon the ground. Q. Are you quite sure that you saw him level a piece at your officer, and after that throw it down, and take up a pike and act in the way you describe, with respect to yourself ? A. Yes. 15 353 Q. Had you seen Baird, before you saw him level the piece at your officer's side ? A. Not to my knowledge. Q. Did your officer, and you and the party, get through the obstruction which existed at the gap, notwithstanding those pikemen ? A. Yes. Q. Was Baird taken afterwards ? A. He fell down ds I entered the gap, and I did not see any more of him, till I came and saw he was a prisoner. Q. You are quite sure, he was the man that wounded you, and the man that also levelled a piece at your officer, you say ? A. Yes. Q. Do you remember any other man's face, and the names of any other persons that you saw there ? A. No. Q. Should you know any of them again if you saw them, think you ? A. Yes, by seeing them coming along the road as prison- ers. Q. Were all those men who came along the road as pri- soners, taken at that time ? A. Yes. Q. Look at those men ? A. There are more than the number that I saw. Q. But which of those do you recollect to have seen at that time ? Point out any other persons whom you saw before you got to the gap, or afterwards in the course of that skir- mish, who were taken prisoners. A. This man fourth from the right. Q. Do you mean near the boy ? A. Yes. Q. What coloured handkerchief has he ? A. Black, (Moir.) Q. You remember him there ? A. Yes. Q. Any other persons can you speak to ? A. Not to be confident. VOL. i. z 354 Lord Justice Clerk. ! understood him to say all the men he saw prisoners, were taken at the time. Mr Serjeant Hullock. Yes, my Lord. All the men you saw taken to Stirling as prisoners, were taken at the time ? A. Yes, they were taken prisoners when I left the place ; I took none. Q. You were disabled by your wound ? A. Yes. Q. You were not there when any search was made for am- munition ? A. No. Q. Did you leave the field, or only go aside ? A. I only went aside. Q. To get your arm bound up ? A. No, after I found myself getting weak, I rode away by myself. Q. You grew faint, perhaps, from the loss of blood ? A. I was. Cross-examined by Mr Jeffrey. Q. I think you said the man who struck you with a pike was in the gap ? A. Yes, at the entrance of the gap. Q. Was it before you got into the gap that you were hurt ? A. No, as I was going through. Q. Had Lieutenant Hodgson got in by this time ? A. Yes. Q. Had he passed the same man ? A. I cannot say. Q. Were not you close behind him ? A. He might be one minute before me. Q. Then you were not close covering him ? A. I was the first one that followed him. Q. But not close up with him ? A. No. Q. Where was Lieutenant Hodgson when this man 355 Baird levelled his piece at him ? was he inside of the gap then ? A. He was exactly through. Q. And you were outside ? A. Yes. Re-examined by Mr Serjeant Huttock. Q. You have been asked how near you were to your of- ficer when you went through the gap, now I do not ask you that, your officer was the first through the gap ? A. Yes. Q. Did the levelling of the piece by that man take place as soon as your officer had penetrated through the gap ? A. Yes. Q. You say it failed, it would not go off? A. Yes. Q. Did he throw it down and take up a pike before you got through f A. Yes. Q. He received your officer by levelling of his musket f A. Yes. Q. When you got through you were received by a pike ? A. Yes. Q. By the same man ? A. Yes. Q. Whatever time might elapse between your officer getting through and your getting through, he had an op- portunity of changing his weapon ? A. Yes. Q. And he did do that ? A. Yes. Q. With respect to your officer, the piece, whatever it was, a musket or fowling-piece, proved harmless ? A. Yes. Q. With respect to yourself, you have stated the conse- quences of the pike ? A. Yes. 356 Lord Justice Clerk. You say the gun failed in its effect and did not go off, were you near enough to observe whe- ther the trigger of that musket in Baird's hand was drawn ? A. Yes. Q. You saw the trigger drawn ? A. Yes. Q. When levelled at your officer ? A. Yes. JOSEPH WARREN -sworn. Examined by Mr Drummond. Q. You are a Serjeant-major of the 10th Hussars ? A. Yes. Q. Were you at Bonnymuir on the 5th of April ? A. Yes. Q. Had you gone from Stirling that day ? A. The night before. Q. You did not march with the troop then, did you ? A. Yes, in the morning. Q. Were you upon your own horse in that adventure ? A. Upon my own. Q. Where were you at the time that your party led down towards the wall ? A. On the left. Q. Was your officer between you and Saxelby ? A. He was. Q. Was the only front that you shewed, the front shewn by you there ? A. No, in going down we could only go by files. Q. From the difficulty of the road ? A. In consequence of the road being so narrow. Q. Do you remember a gap in the wall ? A. Yes. Q. Did you pass through that gap yourself? A. I did. 357 Q. Before that, where were the persons on the other side, how were they arranged on the other side ? A. There were four at the gap to prevent our going through, the others were against the wall. Q. How were those four at the gap armed, were they armed some way and some another, or all uniformly armed ? A. I did not take particular notice whether they had more than pikes, but each had pikes. Q. Were the pikes placed in any order, so as to obstruct you ? A. They were placed so as to obstruct our coming through that wall. Q. Were they placed so as to produce that effect, if you had not been determined to go ? A. If we had not been determined, they might have pre- vented us. Q. Upon going through that place, did you observe any person in particular ? A. None in particular. Q. How near were you to your officer at the time that you went through the gap ? .-/. He was in advance of me some distance. Q. Did you see him go through the gap ? A. I did. Q. Did you see any of the men on the other s.ide near him, either with pikes or muskets, or any other weapon ? . / . I saw him engaged with three or four. Q. In what way were these persons armed, do you re- member ? A. Pikes generally. Q. Did you observe any of them with a short musket or fowling-piece? A. I observed one man with a short blunderbuss. Q. Had you observed that man before or*after, or was that the first time of your observing him ? A. That was the first time I observed his having that. Q. Had you seen the man before ? . /. I had not Q. Should you know him again ? 358 A. Yes. Q. Look about ? A. There he is. Q. Is that the man in the middle ? (Baird.) A* That is the man. Q. What did he do with that blunderbuss ? A, He attempted to fire at the Lieutenant. Q. Did you see him make the attempt ? A. I did. Q. By the attempt, do you mean drawing the trigger ? A. He made an attempt, but the piece did not go off. Q. How near was he when he made that attempt ? At By the distance I was off at that time, I suppose he could not be more than five yards off. Q, You mean that the Lieutenant was not more than five yards off the man? A. Yes. Q. Did he level it as a man does when he is going to shoot at any thing ? A. He took his aim. Q. I need not ask whether he was within distance ? A. I have named the distance. Q. Five yards? A. I conceive about five yards. Q. Did you see the trigger drawn ? A. I did not. Q. How long did he keep it presented at your officer f or what became of him afterwards ? A. My attention was called to a different part of the field. Q. You, I believe, afterwards got through the gap did you not ? A. Yes. . Q. In what way were you received I had the gap been cleared ? A. The four men that were at the gap had been cleared away. I had been giving some directions to the men, and I was prevented going through by a Yeomanry horse that 359 stopped in the gap whether the horse was bogged, or would not go through, I do not know. Q. That retarded your going through ? A. Yes. Q. Did you encounter any opposition ? A. I did, with one or two. Q. In what way did they receive you ? A. They were, apparently to me, defending themselves against some of the men. Q. Against some of your men t A. Yes ; I rode up to them ; they were engaged (some of the men) with the Hussars. I rode up to them, and or- dered them to desist, which one of them did immediately ; he threw down his pike, and I took him prisoner; and after that, more men were brought in to me. Q. After that, your attention was directed to taking care of the prisoners ? A. Yes, and receiving their arms. Q. Were the arms brought in to you ? A. The arms were not brought in till the whole of the prisoners were collected. Q. Were they afterwards ? A. They were collected, and all brought in to where the prisoners were. Q. Where you were ? A. Where I was. Q. State to us the number of arms, and the sort of arms, brought in to you on that occasion ? A. To the best of my recollection, I think there were six- teen pikes complete. Q. With heads upon them ? A. Yes, the same as that, (pointing to a pike;) one pike- shaft and a hay-fork. I believe there were five fowling- pieces and seven pistols. Q. With respect to ammunition, was there any tiling of that kind ? A, There were a few rounds of ball-cartridge collected from them. Q. From the persons then in custody ? 360 A. Yes. Q. How many might they have a-piece ? A. I cannot say what each might have had, it was collect- ed so quick and put into a haversack. There were also three parcels of loose powder, which I gave to Mr John Davidson of the Cavalry to bring here. Q. Then the ball-cartridges, and the powder that you gave in that bag to Mr Davidson, were collected on the field ? A. Yes. Q. Do you know where the bag came from ? A. The haversack was worn by Baird. Q. Did you see him have it on ? A. I saw it taken off him ; I did not take it off myself. Q. Do you know whether, at the time it was taken from Baird, it contained any thing or not ? A- It contained nothing. Q. It was quite empty, you mean ? A Quite empty. Q. In going towards this place, at what distance were the individuals whom you afterwards came in contact with off, when you first remember to have seen them ? A. I should conceive, when we got upon the muir, that the distance might be a mile before we saw them. Q. Do you remember what they were doing ? A. When I first saw them they were lying or sitting down upon the top of a hill ; some lying, apparently, and some sitting upon the hill. Q. By the side of the hill? A. On the side of the hill. Q. Could you form any opinion about the number ? A. At that distance, it appeared to me about forty per- sons. Q. Did they continue in that position lying and sitting down for some time, or what did they do ? A. When we were about half way across the muir, they came down the hill, and formed themselves on the other side of the dike or wall. Q. At what pace did they come down the hill did they walk or run ? 361 A. They came gradually down. Q. Did they do any thing in coming down that you saw ? A. No ; I observed nothing but their comihg regularly down the hill. Q. Did they come in any order ? A. They did not appear to come in any regular array j they rose up and came down gradually. Q. Did you observe the manner in which they were equipped at that time ? A. At that distance we could see that they had pikes. Q. Was that from the glittering of the heads, or from the poles ? A. From their carrying them. Q. Were they pikes of this sort, with polished handles ? A. No, I believe you will not find two of them alike. Q. They did not appear to have come from the same manufacture ? A. It does not appear as though they were manufactured by one person. Lord Justice Clerk. Prisoner, have you any questions ? Prisoner. No. ROBERT BOWLER called again. Examined by Mr Serjeant Hullock. Q. You have been at the Castle, have you ? A. Yes. Q. Did you see the prisoner Hardie there? A. Yes. Q. Did you see him at this battle ? A. I saw him there, but not armed. Q. At what period ? A. Just as we were coming out of the field. Q. He was one of those who were taken prisoners ? A. Yes. 362 Q. And do you not remember to have seen him at any former period of that day ? A. No JOHN DAVIDSON sworn. Examined by Mr Drummond., Q. You are a private in the Kilsyth troop of Stirlingshire Yeomanry ? A. Yes. Q. Were you on duty with your troop on the 5th of April last ? A. Yes. Q. Did you go out with a party in consequence of infor- mation that was got respecting a party that morning I A. Yes, about nine o'clock, Q. Towards Falkirk ? A. Yes, Q. You went off the road at Bonnybridge ? A. Yes. Q. Whom did you see after leaving the road ? A. After passing the canal, and proceeding along a wood on the edge of the muir, we saw a party of people convey- ing pikes on a height to our left. Q. What did they do on seeing your party ? A. They ran down the hill and got to a wall. Q. Did they fire over that wall ? A. Yes. Q. Before you got round ? A. No, we had to go round some distance. Q. They fired over the wall before you went through it ? A. Yes. Q. Are you certain they fired first ? A. Quite certain ; there was first one shot, and then se- veral more. Q. All from them? 363 A. All from them before any were fired on our side ; we were thirty or forty yards distant at the time. Q. Was there a slap in the wall ? A. There was a small opening between the wall and the corner of the wood on the right. Q. Did any of your party go through that? A. Yes, Lieutenant Hodgson past through first, and then several of the Hussars and Yeomanry. Q. Did you see any resistance offered to their going through ? A. There were several people standing in the slap with pikes. Q. Did you pass through yourself soon after ? A. Yes, but there were more than half the party through before I got past ; I was to the right of our party. Q. There was an attack made upon them when you got through the wall, I suppose ? A. They fired over the wall previous to our getting through. Q. After you got through, and the skirmish was over, what was done ? A. The prisoners were brought in, and got off the ground, and the arms collected and taken away. Q. Did you see any ammunition taken ? A. There was a bag I carried away. Q. What was in it? A. Several parcels of ball cartridges, and, I believe, pow- der. Q. Did you see them put in ? A. I had it in my hand when they were put in. Q. Did you see where the bag came from I A. From one of the prisoners. Q. Did you see any of them searched r A. Yes. Q. What was found upon them ? A. Parcels of ammunition. Q. Any ball-cartridges ? A. They were made up as ball-cartridges, and I under- stand they had slugs in them. I carried the bag to Bonny- 364 bridge, and then gave the bag to one of the Hussars ; a corporal, I believe, of the Hussars ; I do not know his name. Q. Did you see the prisoner Baird there at the time ? A. Yes. Q. Was he taken prisoner ? A. Yes. Q. And carried to Stirling ? A. Yes. THOMAS COOK sworn. Examined by Mr Hope. Q. You belong to the 10th Hussars, I believe ? A. Yes. Q. Were you at Stirling in the beginning of April, with a part of your regiment ? A. Yes. Q. Had you occasion to follow a squadron on to Kilsyth in the beginning of the month ? A. Yes. Q. On the morning of the skirmish at Bonnymuir ? A. Yes. Q. Did any thing take place as you were going along the road? A. Yes. Q. About what o'clock was it ? A. About eight o'clock. Q. Mention what took place. Did you meet any persons ? A. I was stopped on the road by five or six men. Q. Was there any thing remarkable about those men f had they any thing in their hands ? A. Yes, they had pikes, guns, and pistols, and one or two had a sword. Q. Had each man a pike or a musket ? A. Each man had arms. Q. Were any of them doubly armed in any way ? 365 A. Yes, some of them were. Q. What part of the road was it that you met them in ; was it near Kilsyth, or near Stirling ? A. As nearly as I can mention, about half way. Q. Do you know the road from Kilsyth, by Falkirk, to Edinburgh ? A. Yes, I have been it since. Q. Was it before that road branches from the Kilsyth road ? A. There are some inns, and it was further on from the inns. Lord Justice Clerk.- It was nearer Kilsyth ? A. Yes. Mr Hope. And about halfway ? A. Yes. Lord Justice Clerk. There is a turnpike there ? A. Yes, there is. Q. Was it beyond the turnpike ? A. It was beyond the turnpike. Mr Hope. Were those men walking along the road ? A. No, they were formed up. Q. When you first saw them ? A. Yes. Q. In what manner ? A. Right across the road, and the road equally divided. Q. Did any person appear to be taking directions of the party ? A. There was one on the left dressing them on the left. Q. Did you see that man here yesterday f A. Yes. Q. Bardie? A. Yes. Mr Jeffrey. My Lord, with great submission, I appre- hend the prosecutor is bound, before he goes further, or in- deed was bound, before having gone so far, to prove that the prisoner at the bar was present. My Lord, if he offers to prove that, I will let the examination go on. Lord Justice Clerk. It has been proved by a cloud of 13 366 witnesses, that the prisoner at the bar and Hardie were on the field at Bonnymuir ; and, I apprehend, it is not neces- sary to prove as to what passed at this part of the road, where Hardie was one, and apparently the leader, that the prisoner was there. Mr Jeffrey. My Lord, I am aware of the general rule, but, with submission, it does not apply to this shape of the case. My Lord, the affair of Bonnymuir, and the junction of the prisoner and Hardie there, was a subsequent event, and they are now proving an event which took place before they have established any connection between the prisoner at the bar and the other individuals, as to whose acts and deeds they are proceeding to lead evidence. Now, I sub- mit, that the rule is limited to the case of persons acting in the first place in confederacy with each other, and then doing any thing in furtherance of the common object (for it is limited to that) afterthey have separated ; but there is no ground for holding, when you find parties after- wards connected, that their conduct has been connected throughout. It is only in consequence of the supposed combination and conspiracy between the parties, that evi- dence of what one did can affect the others ; and you must first prove a combination to have existed anterior to that act ; and, I believe, that will be found to be the import of the authorities, and is plainly the reason of the rule. In every one of the recent cases it has been so held, that it is in consequence of a confederacy in the first place, that the acts of each of the party are made evidence against the others. If the acts done are in furtherance of a conspiracy proved to have existed antecedently, then, no doubt, you may say, that the act of each, as united, in furtherance of the confe- deracy between them, may connect each ; but I conceive, that it is going beyond the rule to hold, that the proving subsequent connection will let in prior acts. Mr Serjeant Hullock. I wish the learned counsel had condescended to have cited those authorities, the import of which, he states, is in support of this objection. I should like now that he would inform me where any authorities of that sort are to be found. 367 Mr Jeffrey. I refer to the page read by the Solicitor- General, citing the case of Lord Lovat and Lord Stafford ; and I refer to the case of Brandreth, in which, in a passage I have marked, it was distinctly stated, and the ground on which it was ruled after debate was, that it was competent to prove what was done at Nottingham Forest, the prisoner not being on the ground, because he had previously given notice of something to be done at Nottingham Forest. Mr Serjeant Hullock. Those were the facts there, but that is not an authority, (and, I will venture to say, there is no authority of that sort to be found,) that is, not an autho- rity for saying that, because I do shew that these persons were engaged in an ulterior act of Treason, a pure palpable act of sheer unadulterated Treason ; therefore, I cannot shew the acts or declarations of these parties at an antece- dent period before I bring them together, provided the de- clarations and acts are calculated to promote and further that conception of that further act, in which I shew them together. In the case of Brandreth, it is true, the objection was taken, because the facts furnished no other objection ; and the counsel on that occasion, considering their learning and talents, it may be supposed, would take every objection to save their clients. It was the only objection that the facts furnished, and it was overruled at once. But I do submit to the Court, that upon principle in the first place, and then I shall shew that, upon authority, this is legitimate evidence. About two hours afterwards, you have Hardie and Baird in the field of battle, in flagrant notorious rebellion. You have about two hours before, (for this transaction only goes to that state of things,) you have Hardie with five individuals. Hardie, who is in the field with Baird two hours afterwards, you have engaged in the High Treason which 1 aver to be committed by virtue of the delivery of that document which was read in evidence yesterday. What is that document in the first place; because, to entitle the crown to give the act in evidence, it must be shewn, that the thing which he did had a tendency to promote, and to produce, and, in fact, as it were, to terminate necessarily in, that flagrant act of rebellion which took place at Bonnymuir. On the trial of 368 Lord Southampton, something said by Lord Essex when ? previous to the prisoner's being there was admitted and received as evidence. But what is the principle upon which these things are received in evidence : after I have connect- ed Hardie and Baird together, I submit a letter written by Hardie a day before, signed and sealed by himself, without the knowledge of the prisoner at the bar, and sent to a re- mote part of the kingdom, or any other part of the world, provided it was intercepted, and was likely to carry the object into effect, would be evidence. Letters of that sort were read in 1794 on Hardy's trial, and Tooke's trial, and those trials which took place at that period letters never heard of or seen by any of the parties before the trial. Why? because it was shewn that they were all members of the same Corresponding Society. Here, when we shew that all these persons were in active flagrant rebellion against the King's troops, are we, on any principle of law, to be pre- cluded from shewing what Hardie did during the course of that night ? I submit the Southampton case, which is to be found in the same book just now cited, in Phillips, 98, is with us ; but, independently of authority, I submit, on prin- ciple, there is no reason why the parties are to be brought together before we can give this evidence. Mr Jeffrey. Now, my Lord, with great submission, I conceive that the argument upon the principle is clearly with us. It is hard enough in a criminal matter to make a per- son answerable for the whole of perhaps a great aggravation, which the offence which he had meditated, and as to which he had conspired, might receive from the act of another from the uncommunicated and unknown act of an indivi- dual merely because he had engaged in a minor degree, and in contemplation of a minor degree, of the offence which is exasrcerated by that act of the unknown individual. But the oo J principle on which that has been received into the law is, that the presumption is, that if persons were previously in concert to complete an unlawful object, they must be held to authorize those acts which any of them might commit to further that object, or at least, to have trusted themselves and their plot to other persons, so as to become bound by their 369 actions ; but does the act which is thus sought to be brought in operation against one individual as committed-by another, to whom he has at that time trusted nothing, to whom he stands in no terms of relation whatever, fall in with the same rule ? I ask your Lordships to try this by a little exaggera- tion. If it is true a thing done a few hours before, but before there is any connexion between the parties, can be given in evidence, then a thing done a few weeks or years before may be brought in evidence. If one person, therefore, hatching a Treason for years, by slow incubation, forms a plan to carry it into effect, and afterwards an individual is brought to enter into a conspiracy with him, could the acts done before that conspiracy was formed, be given in evidence against him ? Mr Serjeant Hnllock. They would ne continued to present it for some minutes. Mr Hodg- son drew a pistol from his holster, which he present- ed at Baird ; it flashed, or snapped, but did not go off. After we got through the wall, we made a kind of charge at them, and they gave way. Murchie was there, and M'Culloch also." Then he points to the boy Johnston, and says, " he was there, and that when first he saw the boy, he was lying down among the heather this was after the business was over; the boy pretended to be dead, or asleep ; the witness told him to get up, and he did so. He remembers seeing Hardie there ; he was taken prisoner, and brought, with the rest, to Stirling ; he came with them. One wounded man was left on the field. A good number escaped. There were a number of pikes, and some mus- kets and pistols, and a pitch-fork taken, and some ammuni- tion, in a whitish-coloured bag, some ball-cartridges, and powder. He saw some of the prisoners searched, and they had each three or four ball-cartridges in their waistcoat poc- kets. The arms and ammunition were lodged at the Castle. He would know some of the arms again. 1 ' And then he iden- tifies some of those pikes and some of the muskets, now on the table, particularly that short gun he knew it from its appearance, and saw it in the hand of Baird, presented against Lieutenant Hodgson. Robert Bowler is examined, and he says he belonged to the 10th Hussars in the beginning of April last; and he gives the same account about setting out in this pursuit. Then he says, '* Baird is the man Lieutenant Hodgson ad- dressed ; he then levelled his piece at Mr Hodgson, but it did not go off this was after he had desired them to lay down their arms, and before we got through the wall. After this some of our own men fired at the gap, and Lieutenant Hodgson and the cavalry got through. My attention was directed to a lad, of the name of Johnston. I did not see the man, after getting through, who had levelled at 499 Lieutenant Hodgson. When I observed him previously, and when his piece did not go off, he went up to the wall, and appeared to be striking it upon the wall ; but whether he knocked the cock off it afterwards, I cannot say. He afterwards struck one of the soldiers with the butt, di- rectly upon his getting through the gap. I was not through the gap myself, but I saw it done. Baird was near the gap at the time. I did not observe whether he drew the trigger when he presented the gun at Lieutenant Hodgson. He went to the wall immediately after the mus- ket was presented. He got hold of it by the barrel, and was knocking the catch of it on the wall. I do not think he was in the attitude of a person who appeared to be sharpening the flint, but he appeared to be knocking the cock off, so that it might be of no more use." This is the observation of this man ; but it is important to observe, that this gun, which Lieutenant Hodgson swore he saw in the hands of this person, levelled at him, is the identical gun, and the cock is not knocked off. He says, " He did not observe whether the trigger was actually drawn ; that the gun was thrown down, in consequence of its not going off; and that the prisoner at the bar betook himself to another weapon. Two men were on each side of the gap, with pikes, one higher than the other, in a direction" (which he describes) " so as to keep them out the pikes were slanted across the opening. The occasion of their party firing was to enable them to get through. There was a lad that fired several times after they got through the gap, which lad he points out to you to be the prisoner Johnston. He saw the whole of the other prisoners at the bar in the field, without arms the chief part of them carried them as far as they could, and when they found they were near being overtaken, they threw them down, and then they were taken prisoners." William Saxelby says, he is a serjeant in the 10th Hus- sars ; and confirms the account the others give us as to set- ting out in this pursuit. He says, " they were about a mile off when he first observed them ; part of them were in mo- tion, part of them were standing. After some minutes, they advanced towards his party; they ran and ranged themselves behind and alongside the wall, in a line of about 100 yards. They outflanked his party, which could only come by files, from the nature of the ground. When they were about thirty yards from the wall, the party behind it fired ; it was a straggling sort of firing, two or three shots at a time. In the whole about eight shots might be fired, and then they rode close to the wall. No shots had taken place on his part before that." .Then he says, " we shewed no front till we came to the wall ; we might extend ten or twelve yards alongst the wall, but no proper front was shewn. My officer and myself were at the head. He ordered them first to lay down their arms; I repeated the order; we were near enough at that time for that order to be heard by the whole party behind the wall. The shots were fired by fowl- ing-pieces, muskets, and pistols. Some had muskets and pikes too when the officer addressed them. We were with- in reach of their fire. I was wounded in the arm by a pike after I got through the wall, and I received a slug-shot in the body. The officer got through a gap in the wall, and I followed him. We were resisted by the party on our ap- proaching the gap, by the presentment of pikes, and mus- kets covering them. The pikes were used by these men kneeling down in the gap, and it was not practicable to get through without clearing it of the men before you. Then, he says, " the men with muskets were standing presenting, to fire if any one attempted to go on. They were on the level for firing; when they made the attack upon the gap, none of those muskets were fired. He received the wound in his arm, in the attack upon that place, from one of those pikemen, who attempted to dismount him from his horse ; it was not through his arm, but observable on the other side, and done with force. He received the shot-wound after that. Remained in the field. The pike- wound was in his sword- arm. He has since seen the man who wounded him with the pike. Baird is the man ; he was one of the three who defend- ed the gap. On his officer entering the gap, Baird presented his piece close to his side, and finding it did not go oil',, he threw it down, and took a pike in his hand ; a pike which was lying on the ground. He is quite sure that he saw him 501 level the piece at his officer, and act as he has described. He had not seen Baird before he levelled his piece. The party got through notwithstanding the obstruction. He is quite sure that Baird was the man that wounded him, and levelled the piece at his officer. Cannot fix on any others but Moir; all the men brought to Stirling were taken pri- soners when he left the place. He took none, being dis- abled by his wound. After finding himself getting very weak, he went aside, and rode away." Upon his cross-examination he says, " the man who struck him was at the entrance of the gap. He was hurt in go- ing through. Lieutenant Hodgson had got in at this time ; but whether he had passed the same man the witness cannot say. He was the first one that followed him, but was not close up with him. When Baird levelled his piece, Lieute- nant Hodgson was through, and the witness was outside." Upon being re-examined, he says, the officer was first through the gap, and the levelling of the piece took place directly afterwards. It would not go off; he threw it down, and took up a pike before the witness got through. The officer was received by levelling the musket, and the wit- ness by an attack of a pike upon him. He then stated, to a question I put to him, that he saw Baird draw the trig- ger when the gun was levelled at his officer. Now, Gentlemen, you will consider, from the evidence thus afforded by the testimony of Lieutenant Hodgson, Lieutenant Davidson, Bowler, and this person, whether or not, in that party who came down to the wall, the prisoner at the bar was the leader, the commander, and the controller of the whole ? They concur in stating, that, from his acts and deeds, they drew that conclusion ; and you will con- sider, from the nature of the evidence, whether such was the part he took. It is proved, that he drew the trigger, that his piece failed in going off, and it was only on its failing to fire, that he threw down his musket and took a pike ; and, though it is not proved that he used it against the officer, he used it against this witness in going through the gap, and he was the person who inflicted that wound in his arm, 502 which almost penetrated through it, being observable on the other side. Those are the circumstances which attach to the conduct of the prisoner in general ; and it is for you to say, whether you have any doubt, that there was a deli- berate purpose of coming in contact with, and opposing the cavalry. There was no manifestation to avoid the cavalry, which they could have done if they had wished ; but they deliberately waited for a convenient moment to receive them, and they resisted in a manner which led these witnesses to state, they appeared to be men trained to the use of the pike. I will not read the evidence of Warren and John David- son, the two next witnesses, because they go to the same point, and concur in stating, that they observed a short man, with a short gun that was fired ; and that there was a haversack taken off Baird in their presence, but that it contained nothing at the time. This is the haversack which John Davidson and another witness state, they after- wards saw, containing some cartridges and some powder, but it was cartridges and powder collected from persons searched on the spot ; but this bag originally was upon the person of Baird, the prisoner at the bar, taken off his per- son at the time, and made use of to put the ammunition in. Thomas Cooke is a soldier of the 10th Hussars, to whose testimony I generally alluded; and I think it necessary you should particularly attend to the whole testimony of this witness, for I apprehend you can have no difficulty in think- ing the facts he discloses are most important to the ques- tion you have to consider. If you are satisfied there has been a levying of war that there was actually a war levied in the sense of the authorities I have read the purpose of that levying is what you are to consider Whether it was a priva'te pnrpose, for a private revenge, or for some private end, or a public purpose that they had in view, namely, the subversion of the government nnd constitution of the country, and thereby affecting the King himself? and in that view the testimony of this witness appears to be most important and material, for I apprehend you will dis- 503 cover from it a purpose, on the part of these persons, to avail themselves of any knowledge they thought he might afford them ; and it is for you to consider, whether it is referable to any thing but the important purpose which* it is charged, these persons had in view. You will also find there was an attempt made to deprive this person of his arms, which he was entrusted with by royal authori- ty for the service of the state, and that there was also a direct and deliberate attempt made, and proceeding adopt- ed, for the purpose of seducing him from his allegiance and duty, and making him the instrument of seducing others of the same regiment to which he belonged ; and now, Gentlemen, attend to the evidence which this wit- ness has given. Thomas Cooke belonged to the 10th Hussars. ft He was at Stirling, in the beginning of April, with part of his regiment. He had occasion to follow a squadron on to Kilsyth, on the morning of the skirmish at Bonnymuir. As he was going along the road, about eight o'clock, he was stopped on the road by five or six men. They had pikes, guns, and pistols, and one or two had a sword ; each man was armed, and some were doubly armed. They met him about half way between Kilsyth and Stirling. He knows the road from Kilsyth, by Falkirk, to Edinburgh ; there are some inns, and it was further on from the inns j" of course it was more to the westward, and the public-house, leading from Kilsyth to Falkirk, was more to the eastward . " There was a turnpike there; it was beyond the turnpike the men were formed up, when he first saw them, right across the road, and the road equally divided." There was one person on the left; and he stated to you, upon his oath, that that person was Hardie, of whose fate you are aware. He then goes on to state, ' * that the party was dress- ed to the left by Hardie. They stopped him, and ordered him to halt, when he came within about twenty yards of them ; he did not halt, but rode up to them, and they direct- ly took and surrounded him. Some had hold of his horse's head; there were some on one side, and some on the other; they asked him for his dispatches." It is for you to say, whe- 504 ther you can entertain any doubt that, if he had acknow- ledged he had dispatches, they would have allowed him to pass in possession of them. " He told them he had no dispatches. Then they asked him for his ammunition ; and one man in particular wanted to take his arms from him a tall man, dressed in a black coat. They did not take his arms from him, as he told them he was a friend to their cause, that he was a weaver himself. They had not told him what their cause was, only that they were seeking for their rights, as honest men ought to do." It is for you to say, whether you can from this statement, which the witness swears was uttered by one of these five or six persons, of whom Hardie, the person tried yesterday, was one, who was acting as their leader forming them by their left across the road ordering the soldier to halt asking for his dispatches and for ammunition it is for you, Gentlemen, recollecting that one of these persons stated, that they were there seek- ing their rights as honest men ought to do, to say, whether you can, upon any principle of construction applicable to a faithful discharge of your duty, draw the conclusion, that these persons were here upon a private individual purpose- either an object of their own, or for any private revenge or whether these words do not amount to an express de- claration, that it was in furtherance of the great public purpose of seeking what they were pleased to call their rights, that they made their hostile attack upon a sol- dier of the King, then, in the performance of his duty, passing along the road. " Then he said, he was friend- ly to their cause, and hoped they would not molest him ; they shook hands with him, and asked him if he could read. He told them, yes. In consequence of that they gave him a hand-bill, which one of them took from his pocket, and from a roll apparently of the same sort ; and, he says, as far as he could judge, rolled up as hand-bills usually are; there appeared from fifty to a hundred; he did not notice whether it was wet, as if it had been newly printed, or not. They said, every thing in it was true; and they told him to read it, and to take it and shew it to 505 his comrades. They said no more to him about it He looked at it before he left the party ; be saw at the head of the hand-bill, it was " An Address to the Inhabitants of Great Britain and Ireland;" it was dated the 1st of April, 1820, but he (Jjd not observe whether it was dated from any particular place." Now, Gentlemen, attend to the fact which this man swears to, that one of these five or six persons, connected with whom Hardie was, takes out of his pocket a roll, apparently all of the same description of papers; takes one off that roll, puts it into the hands of this witness, desires him to read it and shew it to his comrades ; and he states to you that it was entitled, " An Address to the In- habitants of Great Britain and Ireland," and that it bore the date of the 1st of April, 1820, and see whether you can entertain any doubt, that this person, armed as de- scribed, taking the daring step of stopping this soldier, and endeavouring to obtain from him what the witness stated, and communicating this paper to him, was in possession of from fifty to a hundred copies of these addresses, of the nature of which you are apprized. I say, it is for you to determine, in the discharge of your duty, whether you can entertain any doubt upon the face of the earth, that it is here established in a satisfactory manner, that those persons, one of whom is proved afterwards to have been taken in the field of Bonnymuir to have been engaged in arms and to have done his best to resist the troops, armed in the manner in which they were, and acting as they were, were not furnished with copies of what no man can hesitate to pronounce to be, as indeed it is admitted to be, one of the most treasonable publications that ever issued from any press whatever. The witness goes on to say, " That he made no remark to them upon it; he looked at it again after he passed. After that he went towards Kilsyth ; at least he says he went to a public-house first, and had a glass of spirits. He saw his commanding-officer, Lieutenant Hodgson, at Kilsyth, and gave it to him and Mr Davidson together; they gave it back to him immediately. It did not continue in his possession ; but he gave it to Mr Hodg- 506 son again before he came to the place where they stopped on the road." This, then, Gentlemen, is the history of the paper, which I have already observed on in the testimony of Lieutenant Hodgson ; and it is for you to say, whether there appears to be any reasonable doubt, that it is suffi- ciently traced, as the actual paper got by this man from one of those persons who obstructed him and that he deliver- ed it to his officer who, though he spoke with becoming caution, stated, on his oath, that it was, according to his belief, the identical paper. The witness says, they were all round him when he got it, and saw it given ; that he could not be mistaken, because they surrounded him; therefore, you have Hardie present and looking on at the time when this paper is handed out of the pocket of one of his associates, and delivered to the soldier for his perusal and dissemina- tion amongst his companions. You have that proved in a fair manner by the testimony of this witness, and not a syl- lable has been said to impeach his testimony; and then, Gentlemen, comes the question, whether, in reference to a case of this description, where the charge is a levying war against the King, or a conspiracy to levy war, as stated in the Fourth Count, to compel the King to change his measures and counsels, it is not a part of the evidence as affecting the prisoner at the bar himself? I have no difficulty in saying to you, that, considering the place where this interview took place its being on this high- road its close vicinity to this very place at Bonnymuir the shortness of the interval between the time when the soldier was met and received this document, and that when Hardie is found joining and actively engaged with the others in arms in that levying of war that the acts and deeds of Hardie, or of those with whom Hardie was then engaged, if sufficiently proved, to your conviction, to have taken place, are matters that go to affect the prisoner at the bar, as indications of the general purpose in which they were all engaged at the time the general undertaking for which they were armed and accoutred, and which after- wards resulted in an actual attack upon the King's troops, 507 to the effusion of their blood, and to the danger of the lives of many of them. I repeat, it is a fit subject to go to your consideration; and I have no difficulty in saying, if you be- lieve this paper to be identified, that is a matter which is also deserving of your consideration, as affecting the guilt or innocence of the prisoner, in so far as the question of his real purpose is now under consideration. Gentlemen, you have afterwards the evidence of Mr Har- die, a magistrate, to another copy of this paper, which is admitted to be, and which I have no difficulty in saying is, a treasonable paper. His evidence is material, in reference to the other copy of that paper. He tells you, he is an act- ing magistrate of the county of Lanark, which includes the city of Glasgow, and that he has been so about three years : " That he was examined as a witness in the case of Hardie, who was tried yesterday : That he saw Hardie at Glasgow in the course of Sunday, the 2d April last, at a few minutes past eight ; he saw him in Duke Street, in company with twen- ty or thirty people; they were standing about a watchman's box, and one individual reading aloud an Address pasted on it. On getting up to the party, he stopped ; he heard what was read, and took means to ascertain that it was read correctly and faithfully. Those standing round could hear it read. He made his way through the mob for the pur- pose of taking it from the watch-box, but was prevented by several individuals composing that mob ; they were active, to the number of five or six, in preventing him. That since that time he has seen one of the five or six, namely, Hardie. That he did not know any of the rest. Hardie obstructed him in the attempt to take it down ; he got between him and the box, and hustled him off the pavement by force; he took him by the neck, and the others assisted him. Witness told them that he was a magistrate, that it was a very im- proper Address, and he insisted on having it down. This was after he was hustled off; no words had passed between them before. He then made a second attempt, but Hardie seized him round the body, and threw him off the pave- ment a second time, and said, he would lose the last drop of his blood sooner than he would permit him to take down 508 that paper." It is for you, Gentlemen, to judge, whether or not there is the least foundation in reason for the supposi- tion which has been ingeniously made to you, that mere innocent curiosity, a wish to read out this document with- out interruption, was all that led to the interference of Har- die, in thus obstructing the magistrate in throwing him violently from the pavement and concluding the whole by declaring, he would lose the last drop of his blood sooner than let it be taken down. If you, Gentlemen, can arrive at so extraordinary a conclusion, you certainly cannot be prevented ; but I apprehend you have heard nothing, able as that address was, that can convince you, that, without a most extravagant stretch in favour of this innocent purpose, such a conclusion can be drawn. The witness is confirmed in all this by the testimony of Mr Stirling, who swears that he was obstructed violently, which is reconcileable only to the warm interest which Hardie took in the address ; and this you will not be much surprised at, when you attend to the fact established by Cooke, that Hardie is afterwards seen drilling and commanding, I may say, six or seven per- sons, one of whom is in possession of from fifty to a hun- dred copies of a paper with the same address. It is for you to judge, whether it is not proved to be a copy of that ad- dress delivered at the time when he is proved to be para- ding thepublic road with arms, andstopping one of the King's soldiers. But Mr Hardie goes on and says, " He gave up the attempt in consequence of the above obstruction ; that there was a gentleman spoke to him immediately after he quitted the crowd, not in Hardie's hearing." He says, "if he had not been forced off, unquestionably he would have taken that paper down from the watch-box. The paper was pasted against the watch-box, which was a place for sticking bills, to give information to the people, and appeared to have been so employed before. About two minutes after he left the crowd, he saw another paper pasted on a well, which he took down, and afterwards read ; it contained the same paragraph as the former did, and was dated 1st April." Here, Gentle- men, is positive testimony, by this magistrate, that the paper he found pasted upon the well, in a few minutes after he left 509 the watch-box, contained the same paragraph which he had heard read, and followed the man in reading with his own eye, upon that box; and, therefore, I apprehend, you can have no doubt of the justice and propriety of the observation, which was with so much eloquence and so clearly stated to you by my learned brother on my right hand, that you have the most conclusive evidence, that, as far as this paragraph is concerned, the paper is proved, satisfactorily proved, to be an identical copy of the other. Then he goes on and says, *' He observed the head of the address, but he cannot at this moment state what it was, though it was a paper of the same kind. A party was reading this document, 'and was interrupted by him." Now, Gentlemen, this witness is afterwards, upon the cross-examination, asked some questions, and he states, '* That he heard part of the hand-bill or placard read, and that he observed the same passage in the other paper, though he cannot repeat from memory what he heard read." But, Gentlemen, it is for you to say, whether this cross- examination in any degree affects the fair import of his evi- dence. He never had said he could repeat verbatim this long hand-bill, which I shall not fatigue you by reading again ; all Mr Hardie said was, that when he looked at the paper on the well, he saw the identical paragraph which he heard read, and he is still positive the words in that para- graph are those he heard read ; and, therefore, there is no- thing in this cross-examination which affects his evidence, that this paper on the well was a copy of that which he saw on the watch-box, and part of which he had read. But, Gentlemen, this witness has been also examined to points which the Court decided were fit for your considera- tion, in reference to that question which you are now trying, whether or not there was an actual levying of war ; I mean, the actual state of the city of Glasgow, where this paper made its appearance on the Sunday morning. Mr Hardie states, " that he was in Glasgow on the Monday after ; there were great crowds of idle people in the streets ; they appeared to be working people of all classes. It was worse on the Wednesday. On that day it was just a mob from one end 510 of the town to the other, and people shutting their shops between three and four in the afternoon ; that was gene- rally the case with the shopkeepers, both in the public and private streets, which is not usual except on Sundays. He ascribes this to a feeling from the crowd. Several parties were marching in military array, as if drilled. They seemed to be going towards Bridgetown, which is one of the sub- urbs to the eastward of Glasgow. That suburb is populous, and of the same description of persons as those he has de- scribed as being in the streets. The current of the march- ing men set one way; but there was a current going in every direction. On Sunday afternoon he went through Bridge- town, and saw a great number of the Addresses, not less than a hundred, pasted against the walls. There were not many people there at that time ; it was not crowded like the streets of Glasgow. In consequence of this address, and this state of the streets, a meeting of the town and county ma- gistrates was called immediately ; the general police of the town was reinforced, and also the county patrole ; fresh bodies of the military were drawn into the town ; and a proclamation was ordered to be printed, and posted up through the whole streets of the city of Glasgow. That these steps were taken in consequence of the appearance of the town on the Monday, and the following days." Now, Gentlemen, it is for you to consider, whether or not, when you have the evidence of the existence of such an Address as this being posted up all over the city of Glas- gow and suburbs, when you recollect the nature of that Address, that it contains a declaration of the purposes of rebellion that it calls upon all persons to join in that great undertaking in which the parties were engaged that it addresses the soldiers, and calls on them in that language that it inculcates, as a measure towards the accomplish- ment of their views, the ceasing from all work which was followed by the persons in Glasgow assembling, to the terror of the magistracy ; that is not Treason in reference to this question. I shall not detain you much longer with the rest of the evidence. 511 Buchanan merely swears to Ihe fact, of the armed party, in its way to Bonnymuir, coming to his house, armed with pikes, guns, and other weapons : That they had some re- freshment, bread and porter; and that Baird paid for what refreshment they got ; and that he granted that document of which you have heard so much. He was asked to give a receipt, and proposed to write it in the usual way, " Received from,"" wishing to get the name of the person. This was ob- jected to by the prisoner, who stated that would not do ; and that he then dictated to him a receipt in these words, which was signed by this man, and delivered by him to the prisoner; and you will recollect, that, in his declaration, the prisoner states the fact, that he is in possession of the receipt, and produces it ; and it is marked in reference to his declaration, and is verified by the persons present, that the receipt bore these words, " The party called, and paid for porter and bread 7s. 6d." You will recollect the conversation as to the note or obligation that was to be given in the first instance ; they supposed that he would not be very fond of it, as it was payable at six months, they said. It is for you to consider, whether the extraordinary language which is here used, and the document taken by this person, which he was afterwards to avail himself of, is not an ingredient of the general purpose in which he was engaged ; and that this document was to be a voucher for the 7s. 6d. he had ad- vanced for the behoof of these persons. It is not an ordi- nary receipt, or one that would be granted by an ordinary person ; and it is for you to draw the conclusion, whether it is referable to that general purpose in which they were then engaged. James Russel establishes a fact which is also important in the nature of this case, because, amongst the overt acts charged, that of obtaining arms by force and violence, is one ; and this man states, " That he, on the morning of the 5th of April, lived in Long Croft, in the parish of Denny, about a gun-shot from the road to Glasgow : That some armed men came to his house between seven and nine. That he suspected their object ; he had two guns, he removed one, and hid it behind his house, and on coming in he heard a person observe that he had got one. When he came back he had the gun in his hand. The witness said it was his property, and that he should not take it ; the other replied, " Sir, I will give you a receipt for it. 1 ' Now, Gen- tlemen, you will consider whether this is not a circumstance that tallies with the receipt for the money for the refresh- ment. Here are persons going about the country in this manner armed ; some taking arms by force ; others taking refreshment, and requiring an acknowledgment for the money in this extraordinary manner. This man next saw arms in the Castle of Stirling, and he fixed upon his own musket as the one that was taken from him on that occasion ; and you will recollect, that when the prisoners were col- lected, all the arms were collected, and they were carried ith the prisoners to Stirling, and delivered to the store- keeper, who swears, he received those arms in Stirling, and kept them in his custody, and identifies those old boxes containing muskets and pikes; in one of which boxes is found this musket, of which Russell was the proprietor. This musket had been used upon the field of Bonnymuir, and was collected with the other things, and is now lying on that table ; and, therefore, you will consider, whether this is not proved to have been a weapon taken by one of those with whom the prisoner was active in the field, and it is for you to say, whether he is or is not connected with that mat- ter. But, Gentlemen, there is another branch of the evidence to which it is my duty to call your attention: though it has come last in order, it might have been, more properly, the first branch of the evidence. I mean, that which goes to the overt act in the fourth charge of the indictment, the preparing arms for the purpose of levying war, as appearing in the conduct of the prisoner at the village of Camelon upon the Monday preceding the skirmish at Bonnymuir. Thomas Wright says, " He knows the house of Robert Leishman, change-keeper in Camelon. He was there on the 2d of April last in the evening, about ten o'clock. When he went in, he found Peter M'Callum, James Dunbar, and William Wright, junior. He sat down, and stopped a while. 513 * Wright, and Dunbar went away after some time ; and, after that, John M'Millan and Andrew Burt, junior, came in, and John Baird, and some others with him ; the prisoner is that man. Andrew Burt, junior, brought in some of those weapons they call pike-heads ; he had them under his apron ; he gave them to John Baird, and those men that were with him. The witness saw two, but Burt said there were thir- teen. Burt put those two with the rest in a bag, and Baird and the rest of the men carried them off. They paid for them, and Burt received the money, but he did not know the sum ; he did not know the price of a pike-head. Heard some one say, and it was agreed among them, that Baird and his men were to meet Burt and his men on the canal bank next night between their place, which he understood was Condorrat, and Camelon. Baird and his people had come from Condorrat. They were to meet the next night, but they did not mention the time, and who it was that said it he can- not tell ; this was said, he believes, after the pikes were de- livered to Baird. A man that was with Baird carried out the bag, but he does not know his name." Now, Gentlemen, I do think that this is most material evidence ; material, not only as a preparation in the acquisition and purchasing of arms of this description, pike-heads, but important also, as indicative of a general purpose, when you take the latter part of the deposition of this witness into view, that he heard, though he cannot tell by whom, but it was in the pre- sence of the prisoner, who had got this bag of pike-heads, that they were to meet Burt and his friends upon the canal bank the next night. You have it sworn, that it was after this acqui- sition of pike heads that this agreement was made in the pre. sence of the prisoner. Recollect this is only on the Monday evening before the Wednesday, and that the meeting on the canal bank next night tallies within a few hours of their ap- pearing at the Castlecary bridge, where they breakfasted, and afterwards proceeded alongst the canal. They fulfil their part of the engagement ; they come along the canal the next night or the following morning, and we know what took place afterwards; and, therefore, I do apprehend, that VOL. i. 2 K 514 it is important, not only as to the acquisition of the arms, of which those now on the table are similar in the description, but it is for you to judge, whether it does not afford a strong indication of a deliberate purpose to rise with arms on that night, and do that which you find is afterwards done. William Wright, jun. " lives in Camelon, and was there in the beginning of April last. Leishman lives there, and keeps a public-house. He recollects hearing of the battle at Bonnymuir. About that time he heard that it hap- pened on a Wednesday. That he was in Camelon on the Monday before, and was in Leishman's between seven and ten o'clock." Now, I request you to look to the hour, be- cause the other man says he was there about ten in the even- ing ; and he speaks to the fact of Andrew Burt bringing in pike-heads ; but this man says he was in that house be- tween seven and ten o'clock. " He saw his cousin and his brother Thomas there. He went into the kitchen, and he was going through to a Nailors' Friendly Society, and he was ordered to go into the back-room; and when he went there, he found Baird and Rogers, and two others whom he did not know. By Baird, he means the prisoner at the bar. He was in there before him. Several came into the room after this. He saw James Burt, and Andrew Burt, as the other said; James Burt came in with some pike-heads. An- drew Dawson also came in. Andrew Burt was there before he went in, but James Burt was not there at that time." Now, Gentlemen, you might be led to suppose there was here a difference in the evidence of these two witnesses; but, if they are correct in their statement, the one speaks to a parcel of pikes brought in by Andrew Burt, whereas- the other man speaks of James Burt having brought in a parcel, and put them under the cover of the bed, and he did not see them delivered to Baird ; therefore, it is for you to consi- der whether they are not speaking to two parcels of pikes, brought in by the two Burts, or whether there is any ma- terial difference between their testimonies, so as to shake their credit. One of these persons was brought here in custody, but he is not stated to be an accomplice j he was 515 brought here finder care, and went back in custody. I apprehend you will find that, though one speaks of James Burt, and the other of Andrew, it may be true that they are giving an account of two sets of pikes, and that the tes- timony of the first witness is not weakened by, or incon- sistent with, the testimony of the other ; but upon that it is for you, Gentlemen, to judge. I shall not trouble you by going back to Alexander Robertson's evidence, who is a clear witness to the origin of this business, seeing them march along the canal, about four-and-thirty, armed with pikes and muskets, of that we have enough in the evidence which has been already sufficiently detailed. And now, Gentlemen, having brought this evidence fully before you, which has been met by no contradictory testimony upon the part of the prisoner, it is (with the ex- ception of another part of the evidence, to which I will for a moment advert) for you to draw the conclusion it war- rants. That other branch is, the declarations of the pri- soner declarations which were proved to you to have been taken by two respectable magistrates one the Sheriff-Sub- stitute of this county, the other the Sheriff-Depute of the county of Edinburgh, both of whom have, on their oaths, and they are confirmed by the witnesses, sworn to you that the two declarations of the prisoner, of the 7th and llth of April, were freely and voluntarily emitted by the prisoner, when he was of sound mind, and in his sober senses, certainly emitted by him in a way which must sa- tisfy you he was under no constraint whatever that he was under no intimidation no undue influence, inasmuch as they have sworn that they were freely and voluntarily emitted, and the declarations are themselves formal and complete in every sense. JNow, Gentlemen, it has been stated to you upon the part of the prisoner, not that these are not fit matters for your consideration as part of the evidence, but that they in fact are to be considered as coming under your consi- deration in circumstances extremely unfavourable. That 516 is the import only of what was stated on the part of the prisoner; and that this is a part of the evidence to which you ought to look with great jealousy; because it is said that these declarations are founded upon in this case, not in support of facts in the case, but as sources and means from which motives, views, and purposes are to be ex- tracted. Now, Gentlemen, upon this part of the case, as to the competency and admissibility of declarations, I certainly shall say nothing to you whatever as to the rule of the law of Scotland, with regard to which you are familiar, and which all of you know every day permits the declarations of parties accused to be used as circum- stances and ingredients in almost every criminal trial that takes place in this country, but I think it much better to follow the example of the Lord Advocate, and to call your attention to what is the rule of the law of England, with regard to what may be considered as a parallel species of evidence to that which you now are taking into your consideration. That this evidence, such as it is, was taken in a regular and a legitimate manner, according to the rule of the law of Scotland, no doubt can be entertained for a moment. Now, Gentlemen, the general result of the law of Eng- land I beg leave to read to you, from the authority of Phillips, in his last edition, where he refers to a material case, which had raised the question, and which case had brought it to a full decision. He states, that " the ge- neral rule on this subject was very fully considered, in a judgment, delivered by Mr Justice Grose, on a case re- served for the opinion of the twelve Judges," one of the most solemn adjudications a point of law can receive in England; " and it seems to be now clearly established, that a free and voluntary confession by a person accused of an offence, whether made before his apprehension or after whether on a judicial examination, or after commitment whether reduced into writing or not, in short, that any voluntary confession made by a prisoner to any person, at any time or place, is strong evidence against him, and, if 517 satisfactorily proved," he goes on to state, " sufficient to convict, without any corroborating circumstances." This, Gentlemen, is the rule of the law of England, given by this author as the result of that deliberate opinion of the twelve Judges ; but, as has been correctly observed to you, it is by no means necessary that it should be pushed to the length which you hear the law of England would allow it to be pushed ; for all that has been stated on behalf of the Public Prosecutor, and all that it appears proper to state here, is, that these declarations are ingredients and circum- stances of evidence adduced in this case, deserving of your most deliberate attention, and that, with regard to certain parts of the case, they do afford evidence of a most import- ant kind. I here allude to that general proposition which has been so much relied on on the part of the prisoner, on which he rests his defence, and on which he states he is en- titled to a verdict of acquittal that there is no proof what- ever, notwithstanding the evidence I have gone through, (and, Gentlemen, I own I fear at too great length,) that he had the purpose it is necessary to prove he had in the transactions in which he admits himself to be engaged ; that is to say, that he was not so concerned in these pro- ceedings, and that the proceedings themselves were not of such a nature as amount to an actual levying of war against the King, according to the construction of the law that he did not conspire, intend, invent, and devise the levying of war against the King, for the purpose of compelling him to change his measures or counsels, or for the purpose of over- awing both, or either House of Parliament. That is the po- sition on which he rests his hopes of influencing your opi- nion, and it is for you, independently of what I am now to call your attention to, to say whether you think there is any reasonable ground for that conclusion to which he wishes you to come whether, in connexion with the Address, which is admitted to have been a publication of a treason- able nature, with regard to which it is for you to judge, whether the prisoner has not been brought in contact, by the delivery of the copy to Cooke by the interference which 518 Hardie had, with reference to that publication, to resist the magistrate taking it down, and the attempt to distribute it amongst the troops, by the copy delivered to Cooke, con- nected with the way and manner in which the arms were procured, the way in which they marched in military array in which they took that position, and afterwards gave battle to the cavalry, in the full knowledge that they were the King's troops, you think there is the slightest founda- tion for the position that has been taken upon the part of the prisoner ; for I have no difficulty, Gentlemen, in sta- ting to you my opinion, that if you believe the evidence which has been adduced in this case if you think the facts which have been disclosed in the evidence are suffi- ciently proved, it must be held that there was an actual levying of war, and that there was, in construction of law, a conspiracy, and an intention an attempt and intent to levy a war against the King. That is my opinion upon the law of the case, if you believe the facts ; the facts are for your consideration, and the result of them it is for you to draw. But, Gentlemen, I apprehend that, when you come to consider the passages in the document to which I am now to allude, if there could have existed on the rest of the evidence any reasonable ground to doubt that it was not a private, but a public purpose, that was here in view, that doubt must vanish when you look upon the deliberate statement which this prisoner at the bar has himself given. In the first place, Gentlemen, in the declaration emitted at Edinburgh, this prisoner states, that he " being shewn a printed paper, entitled, * Address to the Inhabitants of Great Britain and Ireland,' dated Glasgow, 1st April, 1820, declares, that he saw a similar Address posted on the toll- bar at Condorrat, at eleven o'clock on the forenoon of Sun- day, the 2d curt, but he does not know by whom the Ad- dress was printed, or posted upon the toll-bar." Here, therefore, is a distinct admission that the prisoner at the bar did see posted upon the toll-bar of Condorrat that treason- able paper, exciting to a general rising in arms a paper, calling upon the soldiers to desert their allegiance and duty, 519 and to join those who were about to rise in arms, and who there pledged themselves to return home no more, unless crowned with victory. This is the paper which he sees upon the morning of the Sunday, by his own admission, to carry it no further. You see him at Camelon on Monday evening, preparing and acquiring arms by the purchase from the Burts. You see him upon the Tuesday, and early on the Wednesday, arrayed in military order, as the commander of a party against the King's troops. But the other declaration does not leave the matter here ; for, being interrogated, " what purpose the declarant and his party had in view ? declares, that, according to the mode in which reformers proceed, no purpose was mentioned ;" declares, " that he was to obey the orders he received ;" and in a former part of the declaration he states, that he re- ceived orders to resist the military, if attacked. He declares, that the purpose was connected with reform " that it was a radical reform in the Commons House of Parliament; and the declarant believes this to have been the understand- ing of the party : That he believes there was something of annual parliaments in it." Now, Gentlemen, it is for you to consider, whether, if a person was deliberately to contrive a declaration of a pur- pose which was to bring a rising in arms, or a preparation for a rising in arms, within the terms of that statute to which I have before referred, the 36th of the late King, and made perpetual by the 57th of the late King, a rising and levying of war, for the purpose of compelling the King to change his measures and counsels, it would have been possible m language to have made a more explicit declaration than that which is clearly given by the prisoner of the purpose which he and that party had in view. Gentlemen, this is his own statement of the matter. If you think there is any doubt of what the purpose was on the face of the evidence, you will consider whether it is not most completely removed by this explicit statement of the prisoner, he was to obey any com- mand he might receive ; and he makes' a declaration, that what he was doing was in furtherance of this object of re- formin the language which he used, a radical reform in 520 the Commons House of Parliament. It is for you, Gentle- men, to consider, whether you can entertain any doubt. I state, there is none existing ; that the assembling with force and arms of persons, whether in a greater or less number, with that object in view the bringing about a radical re- form in the Commons House of Parliament is a direct le- vying of war against the King. If you believe the facts, it is a levying of war against the King; but it is for you, in the exercise of the prerogative that belongs to you, to con- sider, whether you think the evidence entitles you to draw a different conclusion. If you do, in the rightful discharge of your duty, think, that the evidence has been defective- that it has not brought home the fact, that a war was levied, or that a conspiracy was set on foot to levy war that that overt act did not take place, and that it has not been proved that that war was not intended for a public but a private purpose in God's name, if you feel that that is the result of the evidence, act upon it ; but if, on a care- ful, and an attentive and dispassionate view of the evidence, looking to the evidence alone as your guide, you entertain no doubt that there has here been an actual levying of war, and a conspiracy to levy war, you will not hesitate to per- form the duty you owe to God, to yourselves, and your country. Whatever verdict you return, while it will be sa- tisfactory to your consciences, I trust will be so to the coun- try at large. The evidence is now before you, and you will retire and consider of your verdict ; and I pray to God to assist you in arriving at the true and legitimate result of the evidence. You must be unanimous in this case; you are a Jury of twelve, as in a civil case. [The Jury withdrew at twenty minutes past twelve o'clock., and returned in an hour and three quar- ters. One of the Jury presented a paper to Mr Knapp,~\ Mr Drummond. This gentleman is not the foreman- Mr Mitchell is the foreman. 521 Lard Justice Clerk. Gentlemen, this is a proceeding ac- cording to the law of England, in which the Jury are not empowered to choose a foreman. The person first named is the foreman ; and it is his duty to announce the verdict to the Court viva voce, not in writing. One of the Jury. (Mr Munroe.) I understood that ; but a number of the Jury were anxious to have it in writing, and one of the macers, whom we sent to your Lordships, came back and told us to make it out as we thought right. Lord Justice Clerk. The message to us was, that you had a difficulty. If you had come into Court we should have given you any assistance. Written verdicts are entirely out of the question. It is a verdict upon which you must make up your minds, and return viva voce. Mr Knapp. "Mx Mitchell is the foreman. Mr Jeffrey. His Lordship will instruct them that they must be unanimous. Lord Chief Commissioner Adam. You must have no dif- ference of opinion, Gentlemen. Lord Justice Clerk. If you are agreed, why cannot you give the verdict ? Mr Knapp. Are you agreed in your verdict ? Mr Mitchell.^ Yes. Mr Knapp. Is the defendant guilty or not guilty ? Mr Mitchell. Guilty, on the second count. Lord Justice Clerk. It was a natural mistake. I am sorry you should have had such a misunderstanding as to your verdict being in writing. One of the Jury. My impression was that it should be viva voce, and the messenger told us we might give it in writing. Lord Justice Clerk. Even in the Justiciary, we have an act now authorising viva voce verdicts. 522 Stirling, Saturday I5tk July, 1820. PRESENT, The Right Hon. Lord President HOPE, The Right Hon. Lord Justice Clerk, The Right Hon. the Lord Chief Baron SHEPHERD, The Right Hon. Lord Chief Commissioner ADAM, The Right Hon. Lord GILLIES. James Clelland, James Wright, Thomas M'CulIoch, William Clarkson, Benjamin Moir, Thomas Pike, Allan Murchie, Robert Gray, Alexander Latimer, Alexander Hart, Alexander Johnston, John Barr, Andrew White, William Smith, and David Thomson, Thomas M'Farlane, were set to the bar. Mr Jeffrey. My Lords, as counsel for the unfortunate prisoners, the name of one of whom has now been called as next in order to take his trial upon this serious charge, I trust I shall relieve the Court and the country at large from some protracted anxiety, and at the same time not neglect my duty to my clients, which I have endeavoured to discharge, without considering my own insufficiency for the task which was imposed on me, and, I think, without 523 having deserved the imputation of having been sparing of my own toil or labour. My Lords, I hope, without depar- ture from that, I may now venture to state to the Court, that after the event of the trials of the two last days, that have been gone through with so much deliberation, and so great a struggle on both sides, I have advised the unhappy persons at the bar, that, if they are conscious of the guilt charged against them, their wisest course would be, to retract their plea of Not Guilty, and acknowledge their guilt openly in Court j and, I believe, I am now au- thorised to state, that they are ready to withdraw that plea. Your Lordships, of course, will now give them an opportunity of correcting any misapprehension on my part, and allow them to speak for themselves in a matter which they only can ultimately determine, and where their own consciences must be the guide of their conduct. Lord Advocate. My Lords, the prisoners at the bar have the assistance of able counsellors, and must, with such ad- vice, judge for themselves, what is the most wise line of con- duct for them to pursue. I wish it, however, to be known to the Court and to the country, that this proceeding on their part does not take place in consequence of any arrange- ment betwixt the prosecutor and those acting on the part of the prisoners. I earnestly hope that the mercy of the Crown may be extended towards a part of these unfortu- nate men, in such a manner as may seem most fitting to his Majesty ; but these prisoners are not to suppose, that, by any confession they may now make, they are to escape a punishment of a capital nature. It is right that they should be fully aware of this ; and that, before they plead guilty to this indictment, they should well weigh the consequences of the step, and feel that nothing has or can now pass between us which may exclude the possibility, or even the probabi- lity, of a considerable portion of these individuals suffering the highest punishment of the law. Mr Jeffrey. My Lords, I certainly must confirm the statement so correctly made by his Majesty's Advocate. My Lords, the plea of Guilty is proposed to be entered by these prisoners with a full consciousness that there is no stipula- 524 tion or compromise; and their whole hope and trust is in that clemency, to which, it is probable, their claim may be increased by this mark of their contrition. Lord President Hope. James Clelland, you have heard what has been stated on your part by your own counsel; and you have heard also what has been stated on the part of his Majesty's Advocate, that while, upon the one hand, your own counsel has advised you, and thought it most for your interest, that you should withdraw your plea of Not Guilty, and now plead that you are Guilty of the offence charged in this indictment, and throw yourself upon the clemency and mercy of the Crown, on the other hand, his Majesty's advocate has told you, that this is your only hope of mercy, but that there is no stipulation made on that ground. I have also to inform you, that there is no discre- tion upon the part of the Court. The punishment is a sta- tutory punishment, and we can do nothing, upon the plea of Guilty, but pronounce upon you the same judgment that we pronounce upon those prisoners who have been tried and regularly convicted. You will therefore consider all these things in your own breast. Certainly and unquestion- ably I may add this to you, that, according to my appre- hension of the matter, it is your wisest course to plead Guilty. It implies not merely an acknowledgment of the offence, but it shews contrition for it. At the same time you must judge for yourself. James Clelland then withdrew his plea of Not Guilty, and pleaded Guilty. Thomas M'Culloch, William Clarkson, Benjamin Moir, Thomas Pike, Allan Murchie, Robert Gray, Alexander Latimer, Alexander Hart, Alexander Johnston, John Barr, Andrew White, William Smith, and David Thomson, Thomas M'Farlane, James Wright, included in the same indictment, were then severally asked . 525 if they understood what had been stated by the learned counsel on each side; and, answering in the affirmative, were allowed to withdraw their plea of Not Guilty, and plead Guilty, which they accordingly did. Lord President Hope. My Lords, before any further procedure is held in this matter, I am sure your Lordships will all agree with me in saying, that although Mr Jeffrey thought himself entitled in point of law to object to the ap- pearance of Mr Serjeant Hullock, or any English counsel, in this cause against him, yet, in point of fact, there never did exist, or could exist, less necessity for any counsel fearing to meet another counsel of any bar whatever ; and I am sure, if all the bar of England had attended here on behalf of the unhappy men now convicted, it is impossible they could have been better or more ably defended. Every point was hit that it was possible to hit for them, and pleaded in the ablest manner ; and it must be satisfactory to the country, that the result of these trials has been to raise the character of the Scotch bar, and to shew they are fully competent to the conduct of any case whatever. With regard to the last pro- ceeding, he has acted with as much judgment as he did with ability in the defence of his other clients. JOHN ANDERSON, from St Ninians, charged in a sepa- rate indictment, (for whom Mr JEFFREY and Mr HOPE CULLEN appeared as counsel,) was put to the bar. Mr Jeffrey. My Lords, as counsel for the unfortunate person at the bar, I believe I shall not be thought irregular in interposing thus early with a statement, which I trust will be satisfactory to the Court, and all persons concerned in this trial. This unfortunate person, since his arraignment, has had time to reflect both upon the acts in which he has been engaged, and upon the evidence which, I believe, he has already furnished of his concern in them. He has also re- 526 ceived the admonition, which, I trust, will be more exten- sively operative, that all persons, concerned in any measure with the transactions, must have received from the result of the two trials which took place yesterday and the day be- fore ; and, under the influence of these considerations, and, I trust and believe, of a wholesome contrition for the part he has been led to act in very improper proceedings, I am authorised to ask leave, on his behalf, to withdraw the plea of Not Guilty which he has entered, and to plead anew to this indictment in other terms. Lord Advocate. My Lords, on the part of the Crown I must repeat what I stated before, that this proceeding takes place, not in consequence of any understanding betwixt the prosecutor and the prisoner relative to any mitigation of punishment ; and I now tell him before he pleads, that I can hold out no assurance or expectation that the capital part cf the sentence of the law will not be inflicted upon him. Lord President Hope. John Anderson, you have heard what has been stated for you on the part of your Counsel, and on the part of the King's Advocate, that if you do with- draw your plea of Not Guilty, and plead Guilty, you throw yourself entirely and solely upon the mercy of the Crown ; that there is no bargain or stipulation made, or can be made, of a pardon, or mitigation of the punishment, and that you must take your chance; and with regard to the Court, we have no discretion. This is not one of the crimes, nor is this such a Court as the Court of Justiciary, which has the power of mitigating punishment accord- ing to the degree of guilt. The punishment is inflicted by law, and it is the punishment of death, and we can pro- nounce no other against you ; and, therefore, by your plea of Guilty, whatever expectation you may have in making that confession, which implies an acknowledgment of the fact, as well as contrition in some degree, it must depend upon the Crown alone. Therefore, under these circum- stances, if you wish to withdraw your plea of Not Guilty, and plead Guilty, the Court will receive it; but remember 527 it is your own act alone, and you must consider the conse- quences. The prisoner then withdrew his plea of Not Guilty, and pleaded Guilty. WILLIAM CRAWFORD, from Balfron, also charged in a separate indictment, (for whom Mr JEFFREY and Mr MUNGO BROWN appeared as counsel,) was put to the bar. Mr Jeffrey. My Lords, I believe I may cut short this part of the procedure. For, on behalf of this man, the last, I believe, in the fatal calendar for this place, I think I am authorised to make the same statement I have already made with regard to so many others, although there are circumstances in this case which render the recommendation which I have thought it prudent to give more questionable than in most of the other instances ; and I believe it is known to the prosecutor, that this is not one of those aggravated cases, which unfortunately cannot be said of all the others. He was connected with and misled by persons, who have involved him in the guilt with which he stands charged ; but, in full reliance on mercy from that quarter, on which he is aware his only legiti- mate reliance for indulgence can be placed, he is advised, with all humility and penitence, to ask leave to withdraw his plea of Not Guilty, and to plead again in different terms to the Court. Lord Advocate. I have only to repeat again, that he must plead without any assurance being held out to him of mercy. Lord President Hope. You have heard what has been now stated ; of course, you say, your only reliance is on the mercy and clemency of the Crown. You will judge for yourself. At the same time, I have no hesitation in saying, I think it is your wisest course. By this you avoid a full dis- closure of your guilt, and jou have all along appeared to 528 shew marks of contrition ; but, at the same time, no assurance is or can be held out of mercy. It must be your own spon taneous act and deed, trusting and relying that a faithful re- port will be made of your case. The prisoner then withdrew his plea of Not Guilty, and pleaded Guilty. Lord Advocate. My Lords, now that the prisoner Craw- ford has pleaded Guilty, I trust I am not going beyond the proper line of my duty, when I state, that as there necessa- rily must be different shades of criminality attached to the individuals who have this day respectively pleaded guilty to the high charge exhibited against them, so it is satisfactory to me to have it in my power to say, that the case of this prisoner is not one of the most aggravated description; and that I shall feel satisfaction, if, on a representation of the circumstances of his case to the proper quarter, a mitigation of his sentence shall be deemed admissible. In closing our sittings in this county at the present time, I trust I may be forgiven for expressing a humble hope, that the result of the proceedings of this and the two prece- ding days will satisfy this Court and the country, that a due attention has been here paid, on the part of the public pro- secutor, to the selection of the individuals fitted to be put upon their trial before this high tribunal. Lord President Hope. Your Lordships must be all sa- tisfied, that the conduct of the Lord Advocate has been, in all respects, most proper upon the present occasion. 15 -M|J (lib a bio ; 529 Stirling^ Monday, 3l#t July, 1820. For Arraignment of the Defendants in the Camelon Case. PRESENT, LOED PRESIDENT, LORD PlTMILLT. The Grand Jury were called over All present. Foreman of the Grand Jury. My Lord, I am requested by the Grand Jury to express to your Lordships their best thanks for your Lordship's kind and condescending atten- tion to their request, in permitting your Lordship's Address to them to be printed. Lord President Hope. Gentlemen, it was my duty to comply with the request of so respectable a Grand Jury as this is. I am sorry you have had the trouble of attending so often, but I hope this is the last time. John M'Millan, James Burt, Andrew Burt the younger, Daniel Turner, James Aitkin, grocer, James Aitkin, wright, Andrew Dawson, and John Johnstone, were then put to the bar, and severally pleaded Not Guilty. Lord President Hope. Prisoners at the bar, I have to inform you that your trials will commence on Friday next, VOL. i. 2 L 530 the 4th of August; you will be prepared accordingly. Which of you will be tried first I cannot tell that depends upon the Crown. Gentlemen of the Grand Jury, I under- stand it is not necessary for you to attend the trials, or again, unless you are summoned. I hope this will be the last time. Adjourned to Friday next, the 4ith August, 9 o'clock. Tolbooth, Stirling, Friday 4sth August, 1820. PRESENT, LOUD PRESIDENT, LORD CHIEF BARON, LORD PITMILLY. Counsel for the Crown, LORD ADVOCATE, Mr SOLICITOR-GENERAL, Mr DRUMMOND, Mr HOPE. For the Prisoners, Mr GRANT, Mr CULLEN. Trial of the Defendants in the Camelon Case. The Court had, on a former occasion, been adjourned to nine o'clock this morning, but the Judges did not take their seats till a quarter before twelve o'clock. Lord President Hope. Gentlemen, I ought to apologize to you for this delay, but it was not the fault of the Court : the fact is, that the trials at Paisley occupied so much of the time of the Judges, and all persons concerned in them, and caused them so much fatigue, that they had not time to prepare themselves till now. John M'Millan and Andrew Dawson were put to the bar 531 Mr John Peter Grant. My Lord, I have an humble motion to submit to the Court, on the part of the two pri- soners who are BOW at the bar, and I ought to apologize to the Court for not being perfectly aware whether this is the time to submit that motion : it is for leave of the Court that they may withdraw the plea they have already put in at the arraignment, and plead differently. Lord President Hope. This is the only time, I pre- sume. Mr Grant.-*-My Lords, at the request, and by the de- sire of the unfortunate men at your Lordships' bar, acting, as they do, under the advice of my learned friend Mr Cullen, who deserves so much credit for the great and unremitting pains and attention he has bestowed upon their case, and acting under my advice, proceeding upon the very copious and accurate information which I have derived from him, with regard to the nature of the case of these prisoners, assisted as we have been by the Agents whom your Lord- ships appointed, to whose conduct throughout, and I may take this opportunity of saying, to the conduct of all the Agents the Court has appointed for the unfortunate per- sons the Court has had to try, great praise is due ; (and I may add, I can bear testimony that no person in this coun- try, whatever his situation, could have received more faithful or better attention, under any advice, than has been given to these prisoners.) I have to state, that these unfortunate persons now humbly crave leave to withdraw their plea of Not Guilty, and to plead Guilty to this indictment. My Lords, perhaps the Court will forgive me if, in a case of this nature, so interesting, not only to us as counsel for these in- dividuals, but so interesting to us as members of this com- munity, I should presume so far upon the time and pa- tience of the Court as to address a very few words to them. Lord President. The Court are perfectly persuaded that you would never address to them any thing but what was proper, and will hear you with great pleasure. Mr Grant. Your Lordships do me justice, -at least your Lordships do justice to my intentions. We have thought it better, knowing what has passed before, that 532 these prisoners should throw themselves at once upon the mercy of the Crown. I may take this opportunity of say- ing, as in another place, in the warmth of argument, I said, and as I now say, upon cool reflection, and much obser- vation of what has taken place on these occasions, that nothing, I am sure, can be more satisfactory to every person who has witnessed it than the conduct of my Right Honourable and Learned Friend who has had the charge of these prosecutions. My Right Honourable and Learn, ed Friend has conducted himself as his duty to his King and to his country required, and there is nothing, in point of candour towards the unfortunate prisoners, that has been wanting on the part of my Right Honourable and Learned Friend, who has united every consideration that has refer- ence to the due administration of public justice. Upon our parts, my Lords, and upon the part of the very humble in- dividual who presumes to address you, we have endeavoured to discharge the painful duties committed to us duties, ycur Lordships know, of a very different nature from those of my learned friend. We have endeavoured to defend the cases entrusted to us, in the manner that we thought most conducive to the interests of these unhappy persons ; bot, as a member of the community, it is impossible that I can, or that my Learned Friend, or that any man can hesitate, in extremely lamenting those transactions, to which it would not become me to give any particular character those transactions which have caused the institution of this Com- mission. I am sure that every man, whether his situation be high or low, must be aware that the proceedings that have been had recourse to tended to any other ends upon earth than those ends which the true friends of liberty could lend themselves to. If a conspiracy had been formed for the direct purpose of overturning and shaking every thing that connects us with freedom in this country if a conspiracy had been formed to place in the hands of the ministers of the Crown dangerous and unusual powers if a conspiracy had been formed to separate the lower orders of the people from those other classes of society, who, by the constitution of all societies, must contribute to defend 533 that class from oppression if a conspiracy for these ob- jects had been formed by the greatest skill, and the exertions of the greatest talents of the human mind, combined with the most nefarious and wicked dispositions, it could not have promised to itself success by any means so likely to effect its purpose as these proceedings to which I have allu- ded. In proportion as a man is a friend of liberty, (and I take it as no merit to myself to say I am so,) he must feel that every thing depends on the freedom of our constitu- tion. I may say, and I wish I could say it in the hearing not of those persons who were at the bottom of these transactions, for to these it would be useless to say any thing, but to those men who have been betrayed by such persons, that, if they really wish to perpetuate every thing wrong, and much is wrong, in the situation of this country, as, in the situation of every society that exists, much that may be remedied much that requires to be remedied ; but if they wish to perpetuate every thing that is wrong if they wish to prevent those who are desirous to rectify what is wrong, from accomplishing their purpose, they will give ear to such persons as those who have misled them, and they will frustrate all the exertions of the powerful minds which are united in this country, and, though they have not a majority in Parliament, great, and power- ful, and excellent men, are united in defence of the liber- ties of the country, and of the lower ranks of society men who would put in hazard the honours they derive from a long line of illustrious ancestors, and the immense fortunes they possess who would risk every thing in defence of the liberties of the great body of the people ; and, if it is in- tended to render their exertions useless, and annihilate or palsy them, let the people go on and listen, like those who have been deluded in particular parts of the country, to the suggestions of such wretches as have misled them on this occasion, and they will accomplish that object. In every country under heaven, similar proceedings have end- ed in the establishment of a military despotism. It never has been seen on earth that the result has been otherwise ; because persons, be they how virtuous soever persons of 534 education and property, are subject to fear when they see that their property is put in danger. They may shut their eyes to what may be, after all, the real danger they may shut their eyes to what may be the case a tendency to extend the prerogative of the Crown. They will shut their eyes to the real danger, and take fright at not so substantial a danger, and abandon their natural post the protection of liberty, and will throw themselves all at once into the arms of those who would extend the power they would otherwise wish to resist. I have to en- treat your Lordships' forgiveness for thus expressing my- self. I do it from an affection common to me and your Lordships, and every man who hears me, for the persons thus misguided. It is the unfortunate condition of society, that when men are misguided, if their conduct brings them under the law, it is necessary some example should be made of them. In the particular cases where sacrifices are made, we all weep and lament over them. Nothing they can do will change our affection for them, and what we chiefly de- plore is, that, by their yielding to the bad advice of others, they place themselves in situations which tend to their own ruin. My Lords, with respect to these unhappy men, I am sure I can take no better course than leaving them to the mercy of the Crown, whose mercy, like its justice, will pro- ceed at the suggestion of those who advise in matters of this kind. It is needless for me to say that I do this, not by way of compromise with my Lord Advocate, such a compromise would be impossible it would be impossible for me to pro- pose, or him to hear it ; but I do it on the confidence [ have, not only in the generosity, but the prudence of his conduct; because I am satisfied he will think enough has been done for public justice here ; and when these men, by their plea, shall confess the guilt of which they are accused, he will take it into his own favourable and candid consider- ation, he will represent it favourably where mercy will be disposed to prevail, and he will trust to the returning good sense of the people, he will trust to their attending to the display which has been made of many things which they thought could hardly be brought to light he will trust to 535 the accuracy with which the officers of the Crown can trace the most secret conspiracy, and the effects produced on the minds of the people, by knowing that those who have ex- cited them to these acts have shewn themselves to be cow- ards to be despicable and unworthy of trust have shewn that they can betray others into the most perilous situation, and then desert them that they can tell them the most ab- surd stories of assistance here and there, and God knows where and things and visions in the air which never took place ; he will trust to these reflections inducing them to take care how they, or any person over whom they have an in- fluence, yield up themselves and every thing dear to them to the advice and influence of such despicable persons as I have alluded to. I do believe that the people who, on these occasions, have been brought to your Lordships' bar, (those who have been acquitted I am bound to hold not to be guilty of that which has been imputed to them those convicted I am compelled to hold to be guilty), I am convinced they have been the tools of others, more artful, less brave, and less honest than themselves. I hope and trust that what has passed over all this country will have its due effect, and, if it has, the country wilLhave reason to be satisfied, and the people themselves wiK: have reason to be satisfied. I hope that they will see that the true cause of liberty, even the redress of those grievan- ces which they think ought to be redressed which they have a fair right to desire should be redressed in a legal way, that this cause can only be served in a peaceable manner, and that every attempt every yielding to any thing that may be held out to them to induce them to pro- ceed in a different manner, will involve them in immediate ruin, and, what is of more consequence, put the cause of liberty in the greatest jeopardy. Again entreating of your Lordships to forgive what I have taken the liberty of saying, I shall now conclude, by moving your Lordships to allow these men now at your Lordships' bar to withdraw the plea of Not Guilty which they have put in, and throw themselves entirely on the mercy of the Crown. The Lord Advocate having assented to this motion, the prisoners were severally asked whether they wished to with- draw their plea of Not Guilty of their own free will ? the prisoners bowed to the Court, and their several pleas of Guilty were then recorded. Lord Advocate. -My Lord President, my Learned and Honourable Friend, who has just now addressed the Court, has been pleased to express himself in terms of my conduct highly flattering indeed far beyond any claim to which I can pretend. I have endeavoured to discharge an import- ant and difficult duty to the best of my power, and if the mode of its performance shall in any degree be considered as satisfactory to the country, I shall feel more than reward- ed. My Learned Friend does the government but justice in supposing that, in instituting these trials, they are influenced alone by a strong and powerful sense of public duty that they have not a wish to carry any case even to the utmost length that its circumstances would admit of ; and if it be possible to find any thing alleviating in the case of any in- dividual any thing even connected with the district of the country whence he is brought to trial, that can operate in his favour, cheerfully to allow an unhappy prisoner the full benefit of such consideration. Acting on these principles, I am now to perform a duty of great responsibility, but one which I hope will be felt and considered by this Court, and by the country, as a wise and prudent exercise of those powers with which I am invested. To show my Honourable and Learned Friend that his ex- pectations on any point are not likely to be disappointed, and seeing he has judiciously recommended to these two men to plead Guilty, whom I consider as the most crimi- nal at your Lordships' bar, so I agree with him in think- ing that enough has been done, and that I am now at li- berty to arrest the extended hand of justice, and to hold forth that lenity and mercy to the remainder of the unhap- py men before the Court. In their favour I therefore con- sent to a verdict of acquittal. My Lord, when we recollect the number of persons con- victed, and now awaiting their sentence, amounting, in this county alone, to no less than 22, and connected with va- il 537 rious and distinct acts of treason, connected with the affair at Bonnymuir, connected with the insurrection at Balfron, connected with the treasonable proceedings at St Ninians, and now these last individuals, connected with the like pro- ceedings at Camelon. I say, when, in all these cases, con- victions have been obtained, I hope it will be generally felt that we have done enough, and that, if I were now to per- severe farther, I might be supposed to be influenced by a spirit which I disown on the part of the government, and which I disown on the part of myself. My Lord, I trust that these individuals to whom this leniency is to be ex- tended will feel it as they ought to do. I have had appli- cations in favour of some of them from the masters in whose employment they have been, representing their previous good conduct, and the present lamentable state of their fa- milies, and for their almost becoming answerable that the conduct of those men shall in future be different. To these masters I look for the redemption of this pledge. I have a right to expect that they will attend to these individuals, and endeavour to direct them in the right way. And I trust that these persons themselves, when they return to the bosoms of their families, will, instead of being misled by those designing and cowardly miscreants, of whom my Learned Friend has spoken in the terms they deserve, will turn their minds to the real blessings they enjoy, and the justice of the country will not fail to remember the man- ner in which it is administered, and with what leniency the government extends the hand of mercy, even in the highest crimes those against the state. Under this impression I now conclude this duty, by consenting to their acquittal. J cannot, however, sit down without making my acknow- ledgment of my sense of the manner in which my Learned and Honourable Friend opposite has conducted himself throughout the trials in which he has been engaged, for, while he stated all that ingenuity or talent could suggest, he has not forgotten for a moment what was due from him as a loyal subject of this country. He has never set forth any principle but such as became a true lover of that country, and has done all that in him lay, consistently with 538 his duty to his clients, to support the government of these united kingdoms. In so far as he has been pleased to speak of me individually, I now offer him my sincere and grateful acknowledgments. I should have noticed, as touching the proceedings I have had occasion to institute applicable to this country, that the public in general are particularly indebted to the Magistracy of this county. These gentlemen, acting gratuitously, have, in their respective districts, perform- ed difficult and important duties in a manner most ho- nourable to themselves, and important to their country ; and grieved indeed should I be, if the line of conduct I have now taken should not meet with their support and approbation. A Jury were then sworn, and immediately pronounced James Aitkin, wright, Andrew Burt, junior, James Burt, James Aitkin, grocer, John Johnstone, and Daniel Turner, Not Guilty. Lord President. Andrew Burt, junior, and you other men who have been now acquitted, I hope you will consi- der and lay to heart what you have heard pass now in Court, particularly from your own honourable Coun- sel. I think, you must be satisfied of the candour and li- berality with which you have been treated. You will re- collect, and I beg you to recollect, that, notwithstanding what has passed, bills of indictment were found against you by the Grand Jury; and, of course, this must leave an im- pression upon one's mind, that there was some degree, and perhaps no small degree, of probability of your guilt shewn to that Grand Jury; therefore, it will be peculiarly incum- bent upon you to be cautious in your future lives, because that is part of the record which remains, and will not beef- faced ; and if ever you are accused again of other crimes, it is impossible but that, in the administration of justice, this previous fact must press heavily against you. But I hope and trust better things from you: I hope, that what has taken place will convince you how grievously and dreadful- ly you were misled ; for, admitting the fact to be that you 539 had grievances to complain of, which you wished to be re- dressed, I must state to you, and I must do it more fully than your Counsel has, that you took the worst method pos- sible to have them removed. You were risking the salva- tion and prosperity of the country, you were risking every thing that was dear or could endear us to our country, you were risking the reducing this country absolutely to barba- rism again, when the redress of those grievances, alas ! would have been impossible, and not worth obtaining. What has now passed must shew you, that in so far as the lives, and liberties, and safety of the meanest people in this country are concerned, this part of our constitution at least requires no reformation ; for I am sure, had you been the wealthiest commoner in this country, or the highest peer in it, if he could have been tried in this manner, or before this Court, it is impossible that you, or those tried, could have received more justice or favour. I trust you will re- turn to your own houses, thankful for the proceedings that have taken place ; and that you will become, in future, ho- nest men and good subjects. James Aitkin, Andrew Burt, junior, James Aitkin, John Johnston, and Daniel Turner, then bowed, and left the Court. James Burt was committed to prison on a new warrant, on account of some offence charged against him in the She- riff's Court. Lord Advocate. My Lord President, I have now to dis- charge the most painful part of my duty, namely, to move your Lordships for the last sentence of the law. The twenty-two remaining prisoners were then severally asked, whether they had any thing to say why judgment to die, according to law, should not be pronounced against them ? They made no reply, but bowed to the Court; and the Lord President, in a most impressive manner, pro- nounced upon them the following sentence : 540 Lord President. Andrew Hardie, John Baird, James Clelland, Thomas M'Culloch, Benjamin Moir, Allan Mur- chie, Alexander Latimer, Alexander Johnstone, Andrew White, David Thomson, James White, William Clackson or Clarkson, Thomas Pike or Pink, Robert Gray, Alex- ander Hart, John Barr, William Smith, Thomas M'Far- lane, John Anderson, William Crawford, John M'Millan, and Andrew Dawson, YOU present the melancholy specta- cle of two-and-twenty subjects of this country who have for- feited their lives to its justice ; a spectacle, I believe, unex- ampled in the history of this country, such, at least, as I never witnessed, and I trust in God never shall witness again. The crime of which you have been convicted is the crime of High Treason, a crime the highest known to the law, and the highest, I may venture to say, which can be known to a reflecting mind ; because, in fact, whatever may be the motive which a man has in view who engages in the crime of High Treason, we all must be aware, that the crime, whether ultimately successful or not in its progress if progress it has must produce unutterable misery and confusion. It is impossible that Treason can make any progress towards success, without deluging the country in which it takes place in blood and slaughter, in plunder and devastation. All countries, therefore, and all laws, have considered the crime of High Treason as the deepest which any subject can possibly commit. At the same time I ara well aware, that, from the delusion which has been practised against you, and from the principles, perhaps, which some of you have imbibed, you may view this in a different light, and that you may consider yourselves, not as the victims of justice, but as martyrs for liberty. Some of you, for any thing I know, may even glory in your suffering; but remember this, that sentence of death is now to be passed on you all, and remember, that what- ever may be your opinion as to the moral guilt of .the crime of which you have been convicted, that all of you, at least, are miserable sinners. All of you have vices and sins to answer for at the throne of God, and die when you may, or for whatever cause, those sins must be answered for; and, 541 therefore, whatever may be your opinion of the guilt of this crime of which you have been convicted, remember that you still have the sins which beset human nature to answer for at the throne of God : and I entreat and conjure you all, to look into your own breasts, to recal the actions of your past lives, and to pray to God to give you that re- pentance which leadeth unto life, and for which, alas ! the best of us have too much occasion. Remember that repent- ance alone is not sufficient ; remember that you have to ap- pear before a God who is not only possessed of infinite mercy, but of inflexible justice ; that both must be satisfied by us miserable sinners before we can hope for mercy at his throne ; and as we ourselves, alas ! have nothing to offer, have nothing to plead in mitigation of punishment from that inflexible justice, which must be satisfied as well as his mercy, let me entreat you to have recourse to that Re- deemer, who stands as a Mediator between our God and us, through whom alone we can all hope for mercy. It only remains for me now to pronounce against one and all of you the last awful sentence of the law. In regard to you, Andrew Hardie and John Baird, I can hold out little or no hopes of mercy. You were selected for trial as the leaders of that band in which you were associated. You were convicted after a full and fair trial ; and it is utterly impossible to suppose, considering the convulsions into which this country was thrown, that the Crown must not feel a necessity of making some terrible examples ; and, as you were the leaders, I am afraid that example must be given by you. With regard to the rest of you, I hope and trust that mercy may be extended to the most, if not to all of you , but it is not to this Court that mercy belongs, and we cannot guarantee it. It depends upon the mercy of the Crown alone ; a mercy which is never exercised capricious- Jy, and never ought to be exercised capriciously. The mini- sters of the Crown, standing in the elevated situation which they hold, are bound to take into view the interests of the whole community, and not to extend mercy to individual cases, merely for the sake of mercy, if the interests of the country should in fact demand your punishment. I hope 542 and trust, however, that the contrary may be the case; but Jet me warn you all, in the mean time, to avail yourselves of the short time that is granted to you to prepare for the worst. The worst may come upon some of you, and I hope and trust you will be prepared for itj and, at all events, you will not live in future the worse men that you have pre- pared to die. The sentence of the law is, That you, and each of you, be taken to the place from whence you came, and that you be drawn on a hurdle to the place of execution, and there be hung by the neck until you are dead, and afterwards your head severed from your body, and your body divided into four quarters, to be disposed of as his Majesty may di- rect; and may God, in his infinite goodness, have mercy on your souls. I have only to intimate now, that a warrant will be sign- ed by the Court for your execution, on Friday, the eighth day of September. [The Prisoners were then taken from the Bar. Lord President. Gentlemen of the petty Jury, you are now discharged from farther attendance. The Court regret extremely the trouble and fatigue you had on the former occasion ; at present, I trust, you will not complain of any thing of that kind, and I am sure the country will be satis- fied with your attention ; and I do trust, that the proceed- ings of this Commission will have that beneficial effect upon the country which was intended. Great and abominable crimes undoubtedly were intend- ed ; of that we have had complete proof by the convictions which have taken place of so many. I hope and trust, that what has passed in the administration of justice here, and what lias fallen from the counsel on all sides, will have a most useful and beneficial effect, by satisfying the people, that whatever shades of difference there may be, whatever little petty grievances this or that order of the community may have, whatever trifling alterations any persons may think necessary in the constitution, the great and import- ant principles of this constitution are the best, the wisest, 543 and the freest, that the sun ever yet saw. Some people may think that there may be some grievances, others may think, the constitution may yet be amended ; but, up- on the whole, we all live happily, freely, and comfortably under it as it stands : and although those who think they have grievances should not succeed in having them redress- ed, although those who think reformation in some degree necessary do not obtain it, still they have the satisfaction of knowing, they enjoy a greater degree of liberty under the Constitution as it stands than any other nation, and as much, I believe, as human nature in this world is capable of enjoy- ing ; for of one thing be assured, that, unless we continue a virtuous people, we are not fit for liberty, and, therefore, it is that I say, that the degree of liberty which we at present enjoy is, I am afraid, as much as we are capable of enjoying with benefit to ourselves ; and any attempt to give us a much greater degree of it, (I speak not of little alterations, or re formations,) would in fact end in the destruction of that which we have. I have only to state the sense which the Court have, with the Counsel for the Crown, of the activity of the Magistrates of this district. It is highly to their praise; and I hope and trust, that, from the highest to the lowest, they will perse- vere in their endeavours to preserve the peace of this most important part of the country, and, above all, to enlighten the people as to their true interests, and their just rights. WARRANT FOR EXECUTION. The King against Andrew Hardie and Others. STIRLINGSHIRE, to wit, At a special session of Oyer and Terminer of our present Sovereign Lord the King, of and for the county of Stirling, holden at the town of Stir- ling, in the said county, on Friday, the 23d day of June, in the first year of the reign of our Sovereign Lord George 544 the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland King, Defender of the Faith, before Charles Hope, Esquire, President of the College of Justice of our said Lord the King, in that part of the united kingdom of Great Britain and Ireland called Scotland ; the Right Honourable David Boyle, Esquire, Justice- Clerk of our said Lord the King, in the aforesaid part of the said united kingdom ; the Right Honourable Sir Samuel Shep- herd, Knight, Chief Baron of our said Lord the King of his Court of Exchequer, in the aforesaid part of the said united kingdom; the Right Honourable William Adam, Esquire, Chief Commissioner of the Jury Court in civil causes, in the aforesaid part of the said united kingdom ; George Fergusson, Esquire, of Hermand, and Adam Gil- lies, Esquire, of Gillies, two of the Commissioners of our said Lord the King of Justiciary, in the aforesaid part of the said united kingdom ; of whom the said George Fer- gusson and Adam Gillies, or one of them, amongst others in the said letters patent named, our said Lord the King willed should be one; and from thence continued, by se- veral adjournments, until Friday, the 4th day of August, then next following, and then held before the said Charles Hope, Sir Samuel Shepherd, and David Monypenny, Esquire, of Pitmilly, Justices and Commissioners of our said Lord the King, assigned by letters patent of our said Lord the King, under the Great Seal of the united kingdom of Great Bri- tain and Ireland, made by virtue of and according to the form of the statute, made in the 7th year of the reign of the Lady Anne, late Queen of Great Britain, &c. entitled, " An Act for improving the Union of the two Kingdoms," to us and others, and to any two or more of us, and them direct- ed, of whom the said David Monypenny, amongst others in the said letters patent named, our said Lord the King willed should be one, to inquire, by the oath of good and lawful men of the county of Stirling, of all High Treasons, and misprisions of High Treason, within the county afore- said, as well within liberties as without, by whomsoever and in what manner soever, and by whom, when, how, and after 545 what manner done, committed, or perpetrated, and of all other articles and circumstances concerning the premises, and every of them, or any of them, in any manner whatso- ever, and the same High Treasons, and mispri'sions of High Treason, according to the form of the foresaid statute, to hear and determine, Andrew Hardie is attainted, on ver- dict of High Treason, in levying war against our Lord the King within his realm ; John Baird is attainted, on verdict of a like High Treason; James Clelland, Thomas M'Cul- loch, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, alias William Clarkson, Thomas Pike, alias Thomas Pink, Robert Gray, Alexander Hart, JohnBarr, William Smith, Thomas M'Farlane, are severally attainted, on confession of High Treason, in com- passing and imagining the death of our Lord the King ; John Anderson is attainted, on confession of High Trea- son, in compassing and imagining the death of our Lord the King ; William Crawford is attainted, on confession of High Treason, in compassing and imagining the death of .our Lord the Kings John M'Millan and Andrew Dawson are attainted, on confession of High Treason, in compassing and imagining the death of our Lord the King. Let them, the said Andrew Hardie, John Baird, James Clelland, Thomas M'Culloch, Benjamin Moir, Allan Murchie, Alexander Latimer, Alexander Johnston, Andrew White, David Thomson, James Wright, William Clackson, alias William Clarkson, Thomas Pike, alias Thomas Pink, Robert Gray, Alexander Hart, John Barr, William Smith, Thomas M'Farlane, John Anderson, William Crawford, John M'Millan, and Andrew Dawson, return to the gaol from whence they came, and from thence be severally drawn on a hurdle to the place of execution, and be there hanged by the neck until they be dead ; and that after- wards their heads be severed from their bodies, and their bodies (divided into four quarters) be disposed of as our Lord the King shall think fit. And let this sentence be carried into execution upon Friday, the eighth day of Sep- VOL. i. M 546 tember next, between the hours of twelve o'clock at noon, and four o'clock in the afternoon of the same day. Given under our hands and seals this fourth day of August, in the first year of the reign of our said Lord the King, and in the year of Our Lord One thousand eight hundred and twenty. C. HOPE. S. SHEPHERD. D. MONYPENNY. To the Sheriff-Depute of the County of Stirling, His Substitute, The Provost and Magistrates of the Town o/Stirling^and all otfors vohom it may concern. The Court then adjourned to the 25th November, at ten o'clock. Andrew Hardie and John Baird were executed, pursuant to their sentence, on the 8th day of September, 1820. END OF VOLUME FIRST. I EDINBURGH: Printed by James Ballantyne & Co. DATE DUE CAVLOftD UC SOUTHERN REGIONAL LIBRARY FACILITY A 001 041 191 6