that it was proved that they did not do so for the determination of the jury, distinct maliciously or feloniously; or negatively, that and separate from the fact charged to have it was not proven, that they did so mali-been done with such intention. The probaciously or feloniously, cannot have the same bility is, that a man who wounds his neigheffect: and he seems to rest this conclusion bour does so maliciously and feloniously, and on two grounds; 1st. That the printing and it is also probable that a man who has been publishing a seditious libel, implies a mali- proved to have been maliciously wounded cious and felonious intention; and 2ndly, That with a mortal weapon, died of the wound; as the indictment charges the printing and but neither will be presumed, unless so publishing to have been malicious and felo- found by the jury, because the wound may nious, a special verdict finding that the panels have been innocently given, and it may not printed or published, implies a finding, that terminate mortally; and the intention of they did so maliciously and feloniously. giving the wound, and the consequence of That both these arguments, however, are the wound being charged in the indictment, fallacious, is obvious: a writing, may be sedi- can never be taken to help out the averment. tious, and yet a person may print and publish The prosecutor's argument too is the more it innocently; it may be written in a foreign inadmissible, because the verdict does not tongue, which he does not understand, and find the pamphlet to be wicked and seditious, consequently in printing it, he must be which it finds the panels to have printed and merely an innocent instrument; or, it may published; it says, the pamphlet libelled,' discuss topics beyond his capacity or educa- that is the pamphlet intituled, The Political tion. Indeed the prosecutor, by libelling Progress of Great Britain, &c.' not the that the printing and publishing was mali- pamphlet as libelled, viz. the said pamphlet cious and felonious, admits, that it might being a wicked and seditious writing, &c.; have been printed without a malicious or so that, although so dangerous a doctrine felonious intention. Again, it is equally in could be for a moment listened to, as that vain to say, that because the libel charges verdicts were to be extended by implication, the panels with having wickedly and felo- and that judges ought to resort to the eviniously printed and published, finding it dence, and from thence to supply what jurys proven that they had printed and published, may be supposed to have omitted to find, is equivalent to finding that they did so there would be no room for applying it in wickedly and feloniously. The conclusion is the present case. The libel says, 1st, That directly the reverse. Had the crime been the panels printed and published the pammurder, and the minor proposition had charged phlet libelled; 2ndly, That they did so wickthe panels with maliciously and feloniously edly and feloniously; and lastly, that the killing A. B. and the jury had found no more pamphlet that they did print and publish was than that he killed him, the prosecutor, in- a wicked and seditious writing. All these deed, seems to think that this would have facts were essential to found a verdict-guilty. been a verdict equal to guilty. It is impos- They must all, therefore, have been found in sible, however, to maintain such a proposi- a special verdict, in order to lead your lordtion. As well might it be said, that because ships to pronounce that judgment against the a libel for murder, charges a panel with hav-panels, which a verdict of the Court finding ing given A. B. a wound, of which he died, a verdict finding it proven, that he gave A. B. a wound, was not only tantamount to finding that he gave him such wound maliciously and feloniously, but to finding also that he died thereof; for if the verdict is to be stretched beyond its words to include all that is libelled, it will just as effectually imply that the jury have found it proved, that the person wounded died of the wound, as that the person who did so, did it mali-lous nature of the pamphlet is found, which ciously and feloniously; for the consequence of the wound is just as particularly libelled, as the intent with which it was given. Indeed, by the same rule, if it were charged that a panel having conceived deadly malice against A. B. lay in wait for him, and gave him a wound with a sword, of which he died, and the jury were to find it proved, that the panel lay in wait for A. B., it might be maintained, that this was equivalent to finding that he lay in wait for him, wounded and killed him, as referring to the libel in which all that is charged. The malicious and felonious intention is a fact him guilty would warrant; if any one of the facts is awanting, the verdict is insufficient; and it matters not whether that fact be the actual printing and publishing, the malicious intention charged to have given occasion to such publishing, or the seditious nature of the pamphlet printed and published. They are all awanting in the verdict in question, except the actual printing and publishing; and although it could be held that the libel the panels do not admit, this would not be by implication, but directly by holding that the verdict, by the words the pamphlet libelled, describes directly the pamphlet charged to have been wickedly and feloniously written by Callender, and to be a seditious writing, containing the wicked and seditious passages libelled. But there is not a single word in the verdict which amounts to finding that the panels printed and published the pamphlet libelled wickedly and feloniously; and could presumptions and suppositions, totally unfounded in any part of the verdict, be admitted as a part of the verdict itself, the just presumption and supposition is directly fact they had a right to judge of, proved, viz. the contrary, it being impossible for human the printing and publishing; their finding, ingenuity to figure a reason why, if the jury even directly, that there was no malicious inthought it proved, that the panels printed and tention, could not have affected the verdict; published with a wicked and felonious inten- and still less, their not finding the malition, they did not either find them guilty, or cious intention; but had the law been unthe libel proven; or if they chose, without derstood then to stand, as it is now dethe smallest necessity, to find a special clared to stand, by the authority of the verdict, why they did not find, in so legislature itself, that the intention as well many words, that the panel, James Robert- as the libellous matter, whether it is conson, did wickedly and maliciously print and sidered as matter of fact or matter of law, is publish, and the panel, Walter Berry, did pub- within the province of the jury to decide lish only the pamphlet libelled. The verdict, upon, could the learned judge have said, that therefore, in sound reason, can bear no other the jury's meaning to say, that they did not interpretation but this, that the jury saw find any malicious intent, would not affect nothing proved, but that one of the panels the verdict, because that was not the thing to printed and published, and the other pub- be found either way? And is it not equally lished the pamphlet mentioned in the indict- clear, that if, in that case, the charge had ment; and that instead of taking upon them been not simply printing and publishing, but to judge how far its being proved, that they wickedly and feloniously printing and pubprinted or published without a malicious in- lishing, and the verdict had been silent as to tention made them guilty of the crime libel- the malicious intention, the learned judge led, they chose to find, by a special verdict, could not have said as he does, there can be the only fact that was proved, and to leave the no judgment of acquittal, because this fact effect of it to be judged by the Court: that it found by the jury is the very crime they therefore only remained to say a very few were to try;' for the fact would not have words on the case of Woodfall, which the been printing and publishing, but wickedly prosecutor had been pleased to consider as and feloniously printing and publishing. On supporting his plea, though with great defer- the contrary, his lordship's opinion must ence, it appears to have a totally opposite have been directly the reverse. Let lord tendency. It will be observed, that as the Mansfield's reasoning then be applied to the law of England was held by the judges at the present case; though his opinion proceeded time of that decision, the jury were entitled to upon an erroneous view of the law of Engjudge of nothing in the case of a libel, but land, which never had an existence as to the the simple question of fact, whether the pri- law of Scotland; and if it had, would have soner was guilty of publishing or printing. been removed by the late statute. The The facts whether the printing and publishing charge in this case is double; it is of a was done maliciously and whether the writing wicked and malicious intention, and of carcontained libellous matter, were at that time rying it into effect, by printing and publisherroneously held to be matters of law, com- ing. The panels are not found guilty of petent only to the Court; and accordingly both; only one of them, viz. printing and nothing more was, or could be charged publishing, is found proved against them; against Woodfall, but printing and publishing consequently, according to his lordship's opithe paper signed Junius. Lord Mansfield nion, they are acquitted of the other. It is accordingly observes, guilty of printing and sufficient however, that it is not found publishing where there is no other charge, is proved that the printing was wicked and feloguilty, for nothing more is to be found by the nious: for wicked and felonious printing and jury. Where there are more charges than publishing being the charge, a verdict which one, guilty of some only, is an acquittal as finds that the panels printed and published, to the rest. But in this information, there can just as little afford ground for conviction, is no charge except for printing and pub- as a verdict finding them guilty of printing 'lishing." His lordship therefore properly ob- and publishing only, which the prosecutor served, that had the word only been omitted, admits, would have supported the objection there would have been no doubt; and it now made, or a verdict expressly finding a seems to have been his lordship's opinion, wicked and felonious intention not proven, or and indeed he expresses it, that if by using even finding directly that the panels printed the word "only," they meant " to say they did and published the pamphlets libelled, without not find it a libel," or "did not find the epi- any wicked or felonious intention. The thets, or did not find any express malicious judgment therefore, in the case of Woodfall intent, it would not affect the verdict, be- when properly attended to, supports the cause none of these things were to be proved, present objection, and, at the same time, or found either way."t As the law was then gives a striking proof how favourably the understood, all this was perfectly well-judges of England decide upon any objection founded, because if the jury found the only Antè. Vol. 20, pp. 919, 920. to a verdict in a criminal case, as it is evident that the information having charged nothing but printing and publishing, and the prisoner having been found guilty of printing The verdict of assize being read over, the lords proceeded to take into consideration the minutes of debate upon the import thereof before recorded, and pronounced the following opinions: Lord Henderland thought that the verdict was to be understood as finding, with regard to Robertson, that the printing and publishing had been wicked and felonious, the malus animus being necessarily inferred from the printing and publishing; but he thought the result was different in the case of Berry, who was found only to have published. One may utter a bank note, not knowing that it was forged; and so one may publish a book, while ignorant of its real tendency. In the Scots acts relative to Leasing-making, his lordship observed, something is required to be done necessarily inferring malus animus: and in various cases this distinction had been observed, as in the case of Fraser, and that of Mr. Dundas in 1712: SO too Buchanan's book, de jure Regni, was suppressed by act of parliament, without any punishment being inflicted upon the publisher, act 1584, c. 134. Lord Eskgrove.-This is a special verdict, and from the terms of it a seditious intent is necessarily implied, so far as regards Robertson, from the reference to the libel, where the pamphlet was described as wicked and seditious. The case is the same as if the jury had found Robertson guilty of printing and publishing a seditious libel. This cannot be done without a malus animus, every person being called upon to consider what he prints and publishes: there is more doubt as to Berry. We have no law here as in England, which makes the publishing and selling of a libel a crime; therefore, where there is a verdict of publishing, we must decide from the circumstances of the case; and if the writing be very short, as a seditious handbill, a knowledge of its contents will be necessarily inferred from the publication; but here the pamphlet being of some size, the same inference may not be warrantably drawn. Lord Dunsinnan-agreed with the judges VOL. XXIII, who had spoken as to the difference between the two panels. In Lord Abercromby--Our law in this respect has always been different from the common law of England, where, in the case of libel, the jury till a late period were judges of the fact, but not of the law. With us, even in matters of libel, the jury have always determined both as to the law and the fact. this case, if the jury had thought either of the panels not guilty, their verdict would have tious libel is a crime at common law, every been in different terms. To publish a sediperson being presumed to know the contents of what he publishes, even although the book may be written in a language unknown to him; and in some respects the publisher is more guilty than the printer, the crime by his means becoming complete, and the injury to the public put beyond the possibility of recall. The question here is, whether the verdict is altogether defective? I do not think so; I cannot go to the proof, but I may to the indictment or libel, and must consider the case in the same light as if the jury, instead of a reference to the pamphlet, had recited it: the jury might have found the seditious intent proved, but in my opinion they did better by a special finding as to the fact, leaving the Court from thence to judge of the intent; nor can I distinguish between the two panels so as to acquit Berry, against whom a finding as to the publishing only has been given. Every publisher is presumed in law to know the contents of what he publishes, in the same manner as the user and utterer of a forged deed is presumed to be art and part in the forgery, the onus probandi of the contrary being thrown upon him. This is the law, and it is expedient that it should be so. The Lord Justice Clerk (Braxfield) delivered his opinion nearly in the same words. nounced: The following Interlocutor was then pro The lord justice clerk and lords commis "The Court were not unanimous, but the majority were of opinion, that by the verdict's referring to the pamphlet libelled, it must be expounded by reference to the indictment, and must be viewed in the same way as if the pamphlet itself had been engrossed in the verdiet. That being the case, the publishing and printing such a pamphlet, or the publishing only (which was all that was found against Berry), was unquestionably punishable. The Court in this case took occasion to observe, that, by the law of Scotland, no distinction ever was made between the case of a libel, and of any other crime; the jury's province being always understood to be, to take into view the nature of the writing, as well as the fact of publishing."Burnett on the Criminal Laws of Scotland, p. 243. I sioners of justiciary, having considered the verdict of assize dated the 18th, and returned the 19th day of February last, in the trial of Walter Berry and James Robertson, panels, whereby the assize all in one voice find it proven that the said James Robertson did print and publish, and the said Walter Berry did publish only the pamphlet libelled on; with the minutes of debate upon the import of the said verdict given in in consequence of the order of Court, of date the said 19th day of February last, and before recorded; they repel the objections offered in arrest of judgment, and in respect of the said - verdict, decern and adjudge the said Walter Berry and James Robertson to be carried from the bar to the Tolbooth of Edinburgh, therein to be detained, the said James Robertson for the space of six months, and the said Walter Berry for the space of three months from this date, and thereafter till they shall find sufficient caution and surety acted in the books of adjournal for their good behaviour for the space of three years after their liberation respectively, and that under the penalty of one hundred pounds sterling each; and upon elapsing of the said periods of imprisonment, and finding caution in manner foresaid, grant warrant to, and ordain the magistrates of Edinburgh, and keepers of their Tolbooth, to set them at liberty. (Signed) ROBERT M'QUEEN, I. P. D. I extract from the Journal of the House of this case: tioners may have such other relief in the pre mises, as to their lordships, in their great wisdom, shall seem meet.' "Ordered, That the said appeal be referred to a committee, to consider and report, whe ther the same ought to be entertained.' "Ordered, That the petitioners be at liberty to be heard by one counsel before the said committee if they think fit; and that notice thereof be given to the lord advocate for Scotland. Their lordships, or any five of them, to meet on Monday next at the usual time and place, and to adjourn as they please, "Ordered, That all the lords who have been or shall be present this session, be of the said committee." "Luna, 6° Maii.-Ordered, That the sitting of the committee, to whom is referred the appeal of James Robertson, and Walter Berry, prisoners in the Tolbooth of Edinburgh from the court of justiciary in Scotland, presented on the 1st of this instant, May, which stands appointed for this day, be put off to Wednesday next. "Mercurii 8° Maii.-The lord Cathcart reported from the Lords committees, appointed to consider and report whether the appeal of James Robertson, bookseller in Edinburgh, and printer in the Horsewynd there, and Walter Berry, bookseller in South Bridge street, Edinburgh, now prisoners in the Tolbooth of Edinburgh, complaining of two interlocutors or judgments of the court of justiciary in Scotland, of the 18th of February the same may be reversed; ought to be and 18th of March 1793, and praying, 'That entertained: That the committee had met, and had heard counsel for and against 'the petition, and taken into consideration "Die Mercurii, 1o Maii, ▲. D. 1793.—An ap- the matter to them referred, and are of opipeal of James Robertson, bookseller in Edin-nion, that this petition of appeal ought not burgh, and printer in the Horsewynd there, to be entertained.'* Which report being and Walter Berry, bookseller, on South Bridge-read by the clerk, was agreed to by the street, Edinburgh, now prisoners in the Tol- House. booth of Edinburgh, was presented and read; complaining of two interlocutors or judgments of the court of justiciary in Scotland, of the 18th of February and 18th of March, 1793; and praying, That the same may be re- As to this see the note to the case of 'versed, varied, or altered, or that the peti-Nairne and Ogilvic, antè. Vol. 19, p. 1334. ROBERTSON and BERRY against his MAJESTY'S "Ordered, by the Lords spiritual and temporal, in parliament assembled, That this petition of appeal ought not to be received." 593. Proceedings on the Trial of THOMAS MUIR, Esq., the Younger, of Hunter's-Hill, on an Indictment charging him with Sedition. Tried before the High Court of Justiciary at Edinburgh, on the 30th and 31st Days of August: 33 GEORGE III. A. D. 1793.* Friday, August 30th, 1793. A FEW minutes after ten o'clock in the morning the Court was opened by lord justice clerk [M'Queen] and four lords commissioners of justiciary, lord Henderland, lord Swinton, lord Dunsinnan, and lord Abercromby. Upon calling Robert Dundas, esq. his majesty's advocate for his majesty's interest against Thomas Muir, Mr. Muir did not answer to his name, on which the lord advocate rose to address the Court, but Mr. Muir's agent said he would appear in a few minutes and Mr. Muir presently came into court. Mr. Muir was reprimanded for keeping the Court waiting; and was then desired to attend to the indictment, which the depute clerk of court read as follows: tion to the established government; and, the publicly approving of, and recommending, in said meeting, such seditious and inflammatory writing, are all and each, or one or other of them, crimes of an heinous nature, dangerous to the public peace, and severely punishable: yet true it is, and of verity, that the said Thomas Muir is guilty actor, or art and part, of all and each, or one or other, of the said crimes, aggravated as aforesaid: In so far as on the 3d day of November, 1792, or on one or other of the days of that month, or of October immediately preceding, or of December immediately following, the said Thomas Muir having been present at a meeting in the town of Kirkintilloch, parish of Kirkintilloch, and county of Dunbarton, denominated, A Society for Reform,' or bearing some such name; and also, having some time during the course of the said month of November aforesaid, been present at another meeting at Miltoun, parish of Campsie, and county of Stirling, which meeting was also denominated, A Society for Reform,' or bore some such name (and both of which societies abovementioned the said Thomas Muir was the chief mean of instituting and forming); he did, at times and places aforesaid, with wicked and seditious intention, address and harangue the said meetings; in which speeches and harangues, the said Thomas Muir did seditiously endeavour to represent the government of this country as oppressive and tyrannical, and the legislative body of the state as venal and corrupt, particularly by instituting a comparison between the pretended existing govern ment of France and the constitution of Great Britain, with respect to the expenses necessary for carrying on the functions of government, he endeavoured to vilify the monarchical part of the constitution, and to represent it as useless, cumbersome and expensive: at least the said Thomas Muir did use words and arguments of the above seditious tendency and import. Further, the said Thomas Muir did, some time during the course of September, October or November, 1792, in the town of Glasgow, in the county of Lanark, Kirkintilloch in the parish of Kirk* Of this trial several accounts,-not how-intilloch and county of Dunbarton, and ever materially differing, and in no instance contradictory, were published at the time of its occurrence: these I have carefully examined and compared; and from them the report here printed is compiled. "George, &c. Whereas is humbly meant and complained to us by our right trusty Robert Dundas, esq. of Arniston, our advocate for our interest, upon Thomas Muir, younger, of Huntershill, that, by the laws of this and every other well-governed realm, the wickedly and feloniously exciting, by means of seditious speeches and harangues, a spirit of disloyalty and disaffection to the king and the established government; more especially when such speeches and harangues are addressed to meetings or convocations of persons, brought together by no lawful authority and uttered by one who is the chief instrument of calling together such meetings; as also, the wickedly and feloniously advising and exhorting persons to purchase and peruse seditious and wicked publications and writings, calculated to produce a spirit of disloyalty and disaffection to the king and government; as also, the wickedly and feloniously distributing or circulating any seditious writing or publication of the tendency aforesaid; or the causing to distribute or circulate any such seditious writing or publication; as also, the wickedly and feloniously producing and reading aloud, in a public meeting or convocation of persons, a seditious and inflammatory writing, tending to produce in the minds of the people a spirit of insurrection and of opposi Miltoun in the parish of Campsie and county of Stirling aforesaid, and elsewhere, wickedly and feloniously exhort and advise several persons to purchase and peruse various seditious pamphlets and writings; particularly the. |