they had examined the act of 1503, and tranfported to the West Indies, to be were decidedly of opinion, that the crime imprisoned till he was tranfported, and of leafing making, or telling lies of the to be fet upon the pillory at eleven o'clock King, was not the offence chargeable on in the forenoon, on fuch a day as the Mr Muir, but that of exciting perfons Court fhall appoint. Could any cafe, faid to acts of fedition against the King and his Lordship, be ftronger, this was done the conftitution. He found he could only eight months after the act of 1703, not be indicted for leafing-making; but on which fo much strefs had been laid. even on the conviction of this charge, he Had this been an illegal fentence, would could make it clear, that Muir would the privy council, five of whom were have incurred the punishment of tranfpor- judges, and of the firft character, have tation, as well as that of which he was dared to pronounce it. Even that great convicted. He entirely differed from authority (Sir George Mackenzie) quotMr Adam, in the meaning of the word ed by the learned gentleman, had đebanishment; by the law of Scotland, it fined fedition in his treatife, and had conmeant the fending the criminal to any fidered it as a common law offence. If, place the Court thought fit. Transpor- in the trial of Mr Palmer, he had brought tation was only the means for carrying ba- in facts not ftated in the indictment, Bifhment into effect. This doctrine, he the law of Scotland authorifed the pracmaintained to be fupported in the preamble tice; and the Judges of the Court of of the act of parliament 1503, fo much Jufticiary had decided that it was right, in refied on by the learned gentleman. He judging of it. The Houfe was to rememmaintained alfo, that this principle was ber, that it was the law of Scotland, not recognized by the different acts of 1600, that of England they were to be guided by. 1604, 1661, and all the acts from that period down to the act of 1670; under the authority of which, feveral perfons had been fentenced to be tranfported, beyond the feas to the West Indies, and other parts, for leafing-making. From hence he concluded, that the Judges could not have difcharged their duty without acting in the manner they did. It would be impoffible, his Lordship faid, to enumerate the many inftances of tranfportation for leafing-making. When Shetland and the Orknies were fubject to Denmark, perfons were tranfported thither. By the regular practice of the Courts in Scotland, thefe points were arbitrary or difcretionary, it being in the power of the judges to inflict any punishment fhort of death. Among many cafes alluded to, one is remarkable. It was the cafe of David Bailey, who was tried on the 24th of February 1704. This man was accufed of leafing-making-of faying, that the Duke of Hamilton, and the Duke of Queensbury, had fupported the Pretender. He was convicted of this charge. What was the fentence pronounced upon him? They declared him to be infamous: They banifhed him forth of Scotland for ever; ordered, that he be Vol. LVI.

The statement of the learned gentleman was certainly correct as to the pleadings of the Court of Scotland being in the form of a fylogifm. They certainly had a major and a minor propofition, in the courfe of which the prifoner was to know in general what was to be alledged against him; but the learned gentleman mifunderstood the law of Scotland entirely, if he thought that the Scotch lawyers were to plead as formally as they do in England. It was enough, by that law, if a charge was made out in general terms; and the time, by the common practice, in which the profecutor infifted on any act of the defendant, was the period of three months, within the time of which, the prifoner had notice. In either one or other of thefe days, the profecutor muft give evidence of feditious fpeeches or writings, but either of them would do upon a charge of fedition generally laid against fuch prifoner. The profecutor was not bound to prove what he stated fpecifically; it was enough to prove what the nature of the charge was, generally, to entitle him to give evidence of fpeech, words, or letters.

The objection to the jurymen arofe in this manner. The pannel objected beU

caufe

cause they were members of the Gold- and then entered upon the general subject fmiths' Hall affociation, that is, were of the trials, maintaining their legality, men affociated for the purpose of defend- and the foundness of the discretion of ing the Conftitution.. Such an objection the Judges, who, he faid, had done nohe believed and hoped, if fuftained, would thing more than the law commanded have difqualified the first characters in them to do. the kingdom. There were only two claffes into which men could be diftinguished in their political characters; those who fupported the Conftitution, and those who wished to introduce the anarchy and confufion which defolated France; there was no middling clafs to be found. Were those then only relevant as jurymen, who thought as they did, who were to be tried for feditious practices. The witnefs Ruffel, his Lordship affirmed, was juftly rejected for prevarication in his anfwers; and the pannel loft nothing for want of his teftimony, who came to prove what twelve witneffes had formerly fworn to on the part of the - defendant.

Mr Sheridan maintained, there was an evident fallacy in the whole of the learned lord's fpeech, confounding two things effentially different, leafing-making and fedition; the question related folely to the latter, and not to the former. He ridiculed the affertion of Scotch lawyers telling the Houfe, that they were not qualified to judge on a point of common fenfe, becaufe they were not Scotch lawyers. He, in fevere terms, reprobated the affertion, that between thofe in Scotland who wished to introduce anarchy, and thofe who blindly applauded the proceedings of the Court of Jufticiary, no middling clafs could be found. He hoped, that it was as falfe in Scotland as in England, where, between levellers and alarmifts, there was to be found a clafs to whom the people might look up with confidence: Men who had too much fpirit to crouch to power, and too much integrity to use any artifice to gain the applaufe of an unthinking multitude. The conduct of the Court, and of the Lord Advocate, regarding Ruffel, he declared was highly illegal, and agreeable to no principle of law in civilized fociety. He ridiculed the effects of the learned lord's researches, after ftudying the law of Scotland for eighteen months, and bringing forward a law which turned out to be only against leafing-making, whereas the crime charged was fedition. He obferved, that it was extraordinary, in the hiftorical vigilance of the learned lord, he had not found any law for fedition in the hiftory of Scotland, although it had exhibited, in less than a century, two rebellions; nor that he had by accident ftumbled on the cafe of a Mr Dundas (he thought his name was) of Arniston, who was accufed of diftributing medals, which a wicked woman called the Duchefs of Gordon had given to him: on thefe medals were the head of the Pretender, and fomething very feditious on the other The Lord Advocate made an apology, fide-and of making fpeeches recommend

The foundness and propriety of the difcretionary power here ufed by the judges, his Lordship faid he would ever be happy to defend. On this part of his fubject he infifted, with much animation, at confiderable length. Regarding the fuperiority of the law of England over Scotland, of which he had heard fo much, in this particular cafe, he thought the law of Scotland had the fuperiority, and was much better adapted to fupprefs fedition. He also maintained, that tranfportation was the most prudent difpofal that could be made of perfons who had been guilty of fuch atrocious offences; that the perfons convicted, if they had been fined, would have had their fines paid by others and as to imprisonment, they would have borne it with triumph; and would, as others do, have laughed at their prosecutor, and have fown the feeds of fedition among poor illiterate and heedless people.-What might be the effect to the people of England having among them fuch men as Skirving, Margarot, and Gerald?

Mr Thomfon called to order, and thought it highly improper to bring for ward the name of Mr Gerald, who is not yet tried.

the part of the profecution, and rejected competent evidence for the defendant. The jury had the fole right to judge of credibility, the court only to decide on competency. The challenge of the jury, by Mr Muir, he affirmed, was fuch as would have difqualified them in England, and he could fee no reason why it was not fo in Scotland. He commented feverely on the manner the judges gave their opinions; and faid, if there was no example or precedent in their own, they might have looked to this country. Here Mr Fox took an opportunity to praife the humanity and liberal fpirit of the Attorney-General in the cafe of the Rev. Mr Winterbottom, convicted of preaching two feditious fermons : He concluded a very long and ingenious fpeech, delivered with his ufual ability, with exhorting the Houfe to confider the importance of the question, and to agree to the motion.

ed, had admitted improper evidence on and its modification, where not specified by parliament, was left to the discretion of the judges, and which had often been followed up by orders of transportation. The cafe of Bailey, Mr Pitt contended, proved, that arbitrary power was intended to be conveyed to the judges, who had annexed corporal punishments and infamy to the other part of the fentence; and the prefumption was, that their conduct was legal. But it might be contended, that all these remarks on leafingmaking were fuperfluous, as it was fedition that was charged, and that there exifted no law in Scotland by which it could be punished. But if it could be feriously afferted, that no punishment was, by that law, provided for the numerous clafs of crimes, which, in England, were punifhed either as misdemeanours or libels; if that law was fo defective, and authority upon that fubject fo filent, then civil fociety, of which we were members, had the right, through its magiftrates and judges, to declare wherein fedition confifted-an offence which was permanent in its nature, however modified by circumftances, times, and seasons. On the contrary, however, he conceived, that by the common law of Scotland, all of thefe offences, which were not included within the five ftatutes against leafing-making, were fedition, and confequently liable to incur arbitrary punishment. It had been ftated, as a very fingular phenomenon, that although two rebellions had arifen, no fedition had appeared in Scotland. Gentlemen fhould reflect that the ftruggle then was for the higher exercife of power and prerogative in a certain family, and not for the propagation of principles hoftile to the conftitution of the country. The authority of Sir G. Mackenzie, which had been reforted to, he thought established fedition as a diftinct crime, liable to an arbitrary punishment. Having confidered the legality, he would advert to the circumftances of the cafe, as ftated by the Lord Advocate. That the jury belonged to the Goldfmiths' Hall affociation, he confidered as no just cause for challenging them, nor did it infer, that they would not then act with impartial juftice. The whole tranfaction had been

Mr Pitt faid, it was unneceffary for him to enter at any length into the merits of the question, as the conduct of the court in Scotland, with the reafons for the fentence it had paffed, had been fet forth fo fully, and fo ably, by an hon. friend of his, who, with great candour, had detailed the part he took in thefe tranfactions. The bufinefs and the grounds of difcuffion appeared fimple; and the legality of the fentence, and the propriety of the Court of Jufticiary, appeared evident. This was clear from the way in which the act 1703 was conftrued, by which a difcretionary power was given to the judges; and under the fentence of banishment, to inflict tranfportation. His hon. friend did not mean to affert, that, for leafing-making, tranfportation might not be inflicted; but had only remarked, that he thought it moft proper to prefer indictments for fedition, which made the punishment arbitrary, according to the Scottish law. Leafing-making, under various modifications, had been made a capital crime, previous to the act in the reign of Queen Anne, which was enacted to mitigate the punishment by making it fine, impriforment, or banishment. The latter was a general term,