to slaughter, and great crimes when there is no slaughter; but not approaching to the verge of Treason. I need not observe to you, that, when ever 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 even prima facie 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 occasion for such a lamentable Occurrence. In order, therefore, to make out this crime at all, there must be evidence, either by antecedent, or by subsequent acts, of that treasonable 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 with out 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 qualified 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 separate act of treason in him, it is one you need not look to in order to prove the treason; because the treasonable purpose must be sufficiently made out by other circum. stances before you are entitled to give

to that affair the character of a treasonable assault, or a waging of war.

And here, Gentlemen, although for your information it cannot be neces sary 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 notorious to require any proof, and too lamentable to escape the recollection of any one, that for a long course of time anterior to the melan choly 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, although, 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 feature of this, and of many other cases of a simi. lar, and of a different description, with which the courts of criminal jurispru dence in this country have lately been, and are still thronged, 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 deplorable 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 alienation from their duty and allegiance, has unfortunately characterized 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 operation 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 incitements 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 relevantly, and in a view that is entitled to your serious attention, 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 like ly to be committed, all these acts of resistance of the military power are more 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

VOL. XIII. PART II.

of such offences, totally distinguishable from Treason, but leading to the same acts of resistance to the police and 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 Glasgow 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 punished, 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 originated 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 additional violence by imbibing some portions of political animosity. Then another of. fence 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, Gentlemen, 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, Gentlemen, it is in this state of things that you are

called on to find that certain persons, who went armed about the country, and resisted an attempt to arrest and make prisoners of them, must necessarily, and in consequence of that act, be held to have been so raised, and so armed, and 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 career of committing those offences, but for the purpose of wa ging war against the government of the country, and arming 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 and more feasible purposes of such arming can be point. ed 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 proba. bility, such as are suggested by the real circumstances in proof.

Now, Gentlemen, with a view to the evidence in particular, 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. Allusion has also been made to meetings of persons called Radicals; 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 have been brought home to the prisoner, with some others, seem to be relied upon as sufficient proof that these suspicions, these illegal, these criminal acts, which I admit are proved against him, must necessarily 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 subversion 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 concoction-if any evidence had been laid before you that he had been a party, or a member of a committee for organizing a provisional governmentif any expression or speech had fallen from him, deliberately uttered, advi sedly and repeatedly uttered-for I think it would require that-approving the tenor of that publication, with evidence that he understood the tenor of it when he did so approve of it,why, Gentlemen, 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 pronounce. But, Gentlemen, is that the case here?

Is there any evidence, in the first place, such as, I confess, I expected, and I think I was prepared to rebutIs 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 ra

dical meeting, or a zealot for annual parliaments, and suffrage by ballot, or any other reform ?-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 considered, 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 he is unable to shew that he belonged to that class of persons with whom, undoubt edly, 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 is no foundation laid for the belief of a treasonable purpose; for that, like all other fixed purposes for which persons are to be responsible with their lives, ought to be shewn not to be abandoned after a few days, but that the mischief was ripe in the country for years before; but there is no attempt to trace this 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 handbill originally emanated, I admit, if you could fasten on him the adoption of that hand-bill as his creed, with evidence of his understanding it, how ever 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, any thing 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 approbation of it is sealed; indeed, it does not belong to the Court so to findit belongs to you, and you only, to find that; and their Lordships never intended to prejudice that question. Now, Gentlemen, what is the evidence?-I am unwilling 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 opinion 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 sufficiently proved for you to proceed upon. That is an established fact, in proceeding to consider the import of the evidence laid before you, though I am bound to bow to the decision which has been formed, that they have been so far proved, as to entitle you to form the conclusion which 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 suffi

ciently 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 it 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 established 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 deposition,-or that he either himself read, or heard the subsequent 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 fixing him with its tenor, as any exponent of his sentiments or opinions.

But then we ge told that his conversation with the respectable person

who was naturally struck with horror and 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 evidence 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 confess, 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 criminal courts, that the milder interpretation is to be adopted; and it is only where you are compelled to adopt that which imports guilt, that you are 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 suspicion, 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 excitements 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 wondering auditors and spectators; and in the midst of this, to all men very