stance which he thought necessary to cri- | justice. There were other circumstances minate the panel; and though the most in this trial equally at variance with all the prominent charges brought against him principles which we reverenced; and the on his trial were not contained in the in- same facts occurred in the trial of the dictment, still the panel, who, according rev. Mr. Palmer, a man of most disinterto law and justice, ought to have availed ested integrity, and whose conduct was so himself of the circumstance, was not ad- exemplary, that he could not avoid specimitted to do so, because the lord advocate fying an instance. He was patronised by declared, that if the charges were then in- the late duke of Rutland, who proposed to serted, the indictment would cover the give him a valuable living; but from mowalls of the court. What would their tives of conscience he refused it. Another lordships say to the managers of the im- and a most affecting proof of his integrity, peachment, if they had omitted several of and of his amiable manners, was, that a their most important charges against Mr. young gentleman whom he had educated, Hastings, and afterwards attempted to of the name of Ellis, was so attached by prove him guilty thereon? Surely their gratitude and esteem to his honoured maslordships would not suffer them to profit ter, that he had determined to abandon by their own negligence? Nothing could all his connexions in life, and to accombe more aburd, or derogatory to the prin- pany Mr. Palmer in his exile to Botany ciples of law, or of common sense. But Bay. This endearing instance of generous the principle, when attempted to be es- attachment he mentioned to prove, that tablished on the impeachment, was four this dreadful sentence, after a trial so exseveral times repelled by their lordships in traordinary, had been passed on a most the case of Warren Hastings. His lord- venerable and admired character. In his ship read a statement of what passed in instance, there had been a misnomer. The Westminster-hall, in each of the instances objection was over-ruled; they tried him he had referred to, and mentioned the re- by the false name, but when they came to solutions of the House, on each occasion, pass sentence, they took care to call him delivered in Westminster-hall by the lord by his real name; thus the person who was chancellor. Now, if this could not be punished was not the person who was tried. suffered in the case of Mr. Hastings, who Challenges, too, were made of several of was to have months, and even years, to the jurors, upon grounds that ought to prepare his defence, how much more for- have been irresistible; nay, one of the cibly did it apply to Mr. Muir, who was jurors felt the force of the objection so to answer on the moment. It was incon- strongly, that he requested permission to sistent, too, with the practice of Scotland; withdraw; this was over-ruled. If all this for an indictment was made out, the facts was the law of Scotland, he would only alleged were set forth, and a copy of this observe, that Scotland had no more liwas given to the defendant. Why? That berty, than it had under the race of the he might know the crime with which he Stuarts. All that he contended for was, was charged in time to prepare his defence. that they should inquire into the trials. But what would their lordships say when He desired only that the sentences passed they heard that facts were brought for- against these persons should not be put in ward in evidence not charged in the in- execution until their lordships should have dictment? This was not all; Mr. Muir was time to inquire, for nothing was more obliged, by the practice of the court, to clear than that they ought to prevent the give in a list of the witnesses the day be- evil consequences of these harsh and infore the trial. Then, after seeing all discreet proceedings; not to suffer them that he meant to prove in his justification, first to take place, and then find that they the prosecutor was suffered to bring forth were wrong. He had some similar motions new facts against him, of which no notice in his hand, for the four cases that had had been given him, under the pretext of already occurred in Scotland, of Mr. their being collateral to the main point, Muir, Mr. Palmer, Mr. Skirving, and Mr. and for which he could not, even if he Margarot. He concluded by moving the had had a hundred witnesses in the court first, "That an humble address be prethat could refute them, have adduced any sented to his majesty, humbly to represent of them, because their names had not been to his majesty that this House has been given in the day before. By this means informed that Thomas Muir, esq. who was the gentleman was entrapped in a manner tried before the high court of justiciary at most outrageous to all ideas of common Edinburgh, in the month of August last, cation by writ of error, or by appeal to the throne, an attempt was set on foot, by unfair accounts of the trial, to excite the people to rebel against the justice of the sentence. God forbid, that the judges should have their characters weighed by the editors of newspapers: justice would then be, as in France, at the mercy of interested individuals. To the present motion he should give his decided negative. upon a charge of sedition, has been condemned and sentenced to be transported beyond seas, for the space of fourteen years; and farther to represent to his majesty, that this House intends to proceed, without delay, to examine the circumstances of such condemnation and of such sentence; and therefore humbly to beseech his majesty, that the said Thomas Muir, esq. may not be transported beyond the seas, until this House shall have had sufficient time to make such examination." The Earl of Mansfield was never more astonished, than he was at what had fallen from the noble earl. It was a heterogeneous mixture of he knew not what, founded on flights of fancy that soared beyond the comprehension of reason. To follow the noble lord through the wilderness of his imagination, would be to lose sight of the beaten track of common sense, and stray into the unfrequented paths of wild imagination. The attention which he took the liberty to claim at present, respected what the noble earl had advanced on the subject of the justiciary courts of Scotland, and to this he could take upon him to answer, that in no court under the glorious constitution of this country, had justice been administered with more fidelity. Whenever the noble earl thought proper to bring the proceedings of that court before their lordships' tribunal, he pledged himself to justify the proceedings of the court below, and clearly demonstrate, that the sentences lately passed by the court of justiciary were strictly conformable to the law of Scotland. As to what the noble lord had advanced respecting Algernon Sydney, lord Russel, &c. that was totally irrelevant to the question. The present culprits were to be tried by the laws of Scotland, and not of England. Did the noble earl wish to try delinquents in Scotland by the laws of England? Did he wish to deprive them of their own constitution, and subject them to laws to which they never, in their representative capacity, assented? If he did not, then the present motion was ridiculous in the extreme; for it went to this purport, that the House should without any document to ascertain a fact, address his majesty to postpone the sentence of a court of justice. The courts of Scotland, like the courts of England, were open to revision of any sentence, if that sentence was deemed unjust; but instead of the regular appli The Duke of Norfolk said, that had the fact, with respect to the admission of evidence of things not contained in the indictment, been brought before them by petition, he should have thought it his duty to go into the inquiry, but he could not entertain it as brought forward in the motion. The Earl of Lauderdale said, he had endeavoured to persuade the noble lord not to bring forward the important question in a way in which it could not be entertained; and even now he hoped he would withdraw it, that it might be brought forward in a more regular way. It was no wonder that these trials had so warmly interested the feelings of mankind, since, that men in Scotland should be transported to Botany Bay for fourteen years for what in England had raised others to the most splendid situations, was calculated to excite surprise, and even more unpleasant sensations. There were circumstances attending these trials, which were most dreadful in their nature, and reflected no small disgrace on the jurisprudence of Scotland; he alluded to witnesses, who were produced against the panel, being threatened with imprisonment for life, if they did not disclose every thing required by the court of justiciary. The Lord Chancellor said, that in the situation in which he stood, it became him to deliver a few words on the most extraordinary motion he had ever heard; for granting even that there had been in the cases alluded to, a mis-trial, that any doubts were entertained of the legality of any part of their proceedings, that the verdict of the jury had not been justified by the evidence, that the conduct of the judges had in any degree been founded in misapprehension of the case, that there had been a misapplication of the law, or, in short, if there had been any thing irregular in the trial, verdict or sentence, there was a remedy provided by the con whole into to prove facts collateral with the main stitution, for wringing the awd of an ad- fact, though not specially stated in the indictment, With respect to the misnomer, though such an error would be fatal in the strict proceedings of the English courts, it was not so in Scotland: it was their doctrine, that the identity of a person was better proved by his joining issue in the trial, and thereby acknowledging himself to be the person meant, than by being perfectly correct in the spelling of his name. In the same way with respect to the challenges, nothing could be more absurd than the grounds on which they were made. To challenge jurors because they had entered into associations, was in fact to challenge all that was respectable in the country; for almost every man of rank or respect, had at that time associated for the purpose of supporting the constitution. In short, all the objections which had been made against these trials were something in the nature of the speech of the man, who being put on his trial, said, he would swear the peace against the judge, for he had a design upon his life. dress being moved for in this House, to pray his majesty to postpone the execu tion of a sentence? Nothing was more certain than that human judgment might err; and not a year, not an assize, not a term almost passed, without instances of cases being brought into that state, when one judge was happy to have his judgment revised by his brothers, and when, by more deliberate discussion of a question, any error into which he might have fallen might be corrected, to the ease and remedy of the parties concerned. Cruel and hard would be the situation of a judge, if such means were not given him, of retracting any misapprehension or error into which he had fallen. What was the way in which this was to be done? By the person who stood convicted by a jury of his country of a crime, presenting a petition stating the hardship of his case, and praying his majesty to interfere with the gracious exercise of his prerogative. Was it so here? Had any petition been presented by the persons tried in Scotland? No such thing. He could take upon him to say, that such was the anxiety of those whose duty it is to advise his majesty in that to which his own disposition so constantly leads him, for the clear ascertainment of the legality of the sentences in question, that though no petition had been presented by the parties, an inquiry had been made; and he would take upon himself to say, that when this paper should be laid before their lordships, they would see that no pains had been spared to determine whether any circumstances had occurred either of irregularity in the trials, or of illegality in the sentence. If ever their lordships should think proper to entertain an inquiry into the case, he would pledge himself that they should find the conduct of the judges of Scotland had been such as their lordships would always desire to find in men entrusted with functions so important. The noble earl had referred to resolutions of that House, as a ground for arraigning the proceeding on the trials. The Scotch judges either could know officially, nor be guided by any resolutions of that House; they could act only by the practice of their own court, and it was certain that all the instances quoted by the noble earl were clearly within such practice. The lord advocate had a right Lord Thurlow agreed that nothing was more becoming their lordships' wisdom and prudence, than to be careful how they gave countenance to reflexions rashly thrown out on the administration of criminal jurisprudence. It was of the ut most consequence to the good order and well-being of the country; and indeed its prosperity depended on the confidence which men had in the purity with which our laws were administered. Their lordships would therefore be always indisposed to any motion of censure, made lightly, against judges; and he could not help saying that the present motion, from the manner in which it was made and supported, was of that sort, for the noble earl had referred their lordships to four acts reversing judgments of attainder passed in 1689. Their lordships would recollect the period at which these acts had passed; it was immediately after the revolution, when a very just and violent ferment ex. isted generally in the minds of the people in consequence of the most cruel, vindictive, and unprincipled administration of justice, that had ever been practised in any country. Would it be hit that their lordships should now make a resolution, grounded on an analogy between the judgments lately passed in Scotland, and the proceedings which these four acts reversed? The natural consequence of accordingly. The criminal law of Scotland in this case had never been, according to the Scots judges, what had been sup posed to be the law of England in certain questions. It was impossible to deny with sir George Mackenzie, whose name deserved much higher praise and more respectful treatment than it had lately met with, that there was a degree of harshness in charging a man generally as art and part in a crime, without specifying the facts which constituted the crime; but until he should hear that a defendant had applied to the discretion of the judges for relief, from actual hardship under the severity of this statute, and that they had refused it, he certainly should not consider it as a charge against the judges, that a person had been so tried. It was the statute law of the land, and the learned lord on the woolsack had truly said, that the question was not whether the law itself was severe or not. With respect to the observation of the noble earl, that a misnomer in the case of one of the persons had not been permitted to operate in his favour; to this, he said, that undoubtedly in England, if pleaded, the indictment would fall to the ground; but in Scotland less strictness was required; and whether our strictness or their looseness was most favourable to substantial justice, he would not stop to inquire, for the question was, whether they had acted conformably to their own practice. So far as he could judge from what he had read of the proceedings on the trial, the counsel for the defendant seemed themselves not to have persisted in the ob such a resolution would be, to disturb the | to decide on the whole case, and who, confidence which men had in the adminis- from the evidence were to find a verdict tration of justice, to deprive the magistrates of the just authority which they ought to possess in the exercise of their functions. He agreed with the noble earl in the general doctrine which he had laid down with respect to criminal accusation. Whenever a man was charged and put upon his trial for a criminal offence, every tittle of that offence ought to be precisely described in the indictment, so as to be previously made known to him, that he might prepare his answer and defence; and it was equally a clear principle in criminal jurisprudence that no one article should afterwards be added, so as to take the defendant by surprise. And this was not only the uniform practice of the criminal courts in England, but it was also a principle generally in the law of Scotland. In one particular instance in the criminal law of Scotland, that which in their law is called art and part, and which is equivalent to what in England we call accessary before the fact, a greater degree of generality and looseness was permitted, than is suffered in England, or than in any other part of the Scots criminal law. This was done by an act of James 6th, the preamble of which sets forth, that, whereas it was difficult to prove the crime of art and part, if the same precision in the statement of facts was required that was necessary for other species of guilt, it permitted them to charge art and part generally without enumerating the particular facts that constituted the corpus delicti. It was fit, for the better understanding the question, that their lordships should know the manner in which the indictment was made up injection, probably because they knew that the Scots proceedings. The indictment begins with setting forth the corpus delicti, which they call the major proposition of the syllogism, and this is alleged generally; it then proceeds to the minor part of the syllogism, in which are enumerated all the facts, which if proved, go to constitute the general charge, or major of the proposition. This corpus delicti the judges first found; that is, they declared whether they found the charge was relevant, and whether, if the facts of the minor proposition were proved, it amounted to the species of crime libelled in the major part of the syllogism, and inferred the punishment belonging to such crime. The judges having found the relevancy, referred the whole to the jury, who had it would have only occasioned a new indictment, and given an interval of 15 days. The specific crime charged on the gentlemen whose cases had produced this discussion, was that of verbal sedition, which seemed by the Scots judges to be considered as an offence at common law, an opinion which it would be presumptuous in him to controvert, though it seemed to him, it had no higher origin than the statute of James the 1st. against leasing making, as the statutes of Edward 1st, and of scandalum magnatum, were the foundation of our law of libel. The term "verbal sedition" was indeed improper because figurative and metaphorical; the true crime of sedition was well defined and understood in the Scots law, and ‡ The question being put, their lordships divided: Contents, 1; Not Contents, 49. Protest respecting the Trial of Mr. Muir.] On the rejection of earl Stanhope's motion, the following protest was entered on the Journals: Dissentient. clearly answered to what were here called routes, or unlawful assemblies, where the people were stirred up to riotous acts against the peace, and which in both countries was clearly distinguished from the crime of high treason, which required either an overt act of compassing the death of the king, of levying war, &c. This act of James against leasing making had sub- 1st, Because the attending to the due jected the criminal to capital punishment; administration of justice, and the watching but by the 3rd of queen Anne, it was re- over the conduct of the various courts in duced to the level of what in England we this kingdom, is one of the most imporcalled misdemeanor, and restricted to an tant branches of the business of this arbitrary punishment of fine, imprison- House, and is at all times also one of its ment, or banishment. If these persons most essential duties. 2, Because it obhad been tried in England for the same viously appears to be proper to examine offence, they would have been tried for into the justice and legality of a sentence, misdemeanor; and if convicted, would before it is executed, and not to permit have received the sentence commonly an- it to be executed first, and then to exnexed to such guilt. What particular amine into its justice and legality aftercircumstances there might be in the tem- wards. 3, Because, for want of such per and disposition of the people of Scot- timely interference on the part of this land, in the nature of the case, or in the House, it has formerly happened, that, general state of the kingdom, to induce within a short time, no less than four unthe judges of Scotland to inflict the very just and illegal judgments were actually severest sentence within the grasp of their carried into execution, as appears from discretion under the act of queen Anne; the respective attainders of the innocent whether that act gave them any such dis- sufferers having been afterwards reversed cretion, or what additional latitude they and made void (when it was too late) by conceived to derive from the act of the four acts of parliament, made and passed 25th of his present majesty, it was not in the first year of the reign of their late for him to determine; nor indeed was it majesties king William and queen Mary, the business of this day to inquire. It namely in the cases of alderman Cornish, was always his wish to believe that judges Alice Lisle, Algernon Sydney, and lord acted with a sound discretion. It was Russel. 4, Because it is contrary to the idle to say, however, that lapses did not first and immutable principles of natural accur to judges, and that errors were not justice, that any thing to the prejudice of incident to all human tribunals, as well as a defendant should be brought before a to all human conduct; judges would be jury in a criminal prosecution, that is placed in a most unfortunate situation, if" only collateral, not in issue, nor neces. opportunities were not furnished them to re-consider their conduct, so that they might not persist in error. The learned lord on the woolsack had truly said, that in all cases where the judges had either mistaken the law or abused their discretion, the constitutional course was, for the persons aggrieved to petition his majesty for redress; whose gracious inclination and undoubted prerogative it was not only to temper the harshness of legal judgments, but to prevent the erroneous decisions of his courts of criminal justice from being oppressive to his subjects; and nothing was so wise as the gracious exercise of this prerogative, for it tended to preserve that confidence in the due administration of the laws, which was so necessary to the well-being and order of society. sary in the conclusion." 5, Because it is not (nor ought to be) competent for the prosecutor to produce any evidence to support any matter that is not charged in the indictment: that is to say, distinctly and precisely charged, and not by mere epithets or general words, such as oppression, sedition, vexation, or the like. 6, Because, in like manner it is not (nor ought to be) competent for a prosecutor to produce any evidence to prove any crime to have been committed by a defendant in any other particular than that wherein it is in the indictment expressly charged to have been committed. 7, Because no such proceedings as those above stated, nor any of them, can be justified under pretence, that "If it had been necessary to specify in the indictment all the facts against the defendant, the indictment |