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fhould be freed from all punishment; but that Mr Robertson fhould be subjected to the pains of law; while others, on the contrary, represented the mere printing as an act of no criminality at all, but the publishing, as a crime of the greatest enormity *. Upon the whole, it appeared that the court in general were disposed to be more lenient to Mr Berry than to Mr Robertson.

When at length it came to the turn of the learned president of that court to speak, he said, that the great

* It deserves to be noted, that in the course of the reasoning, where the learned judges assumed the province of jurymen, one cir. cumstance that seems to be of considerable importance in this cause never was brought into view, viz. the difficulty that may have occurred to the pannels, even if they should have attempted to judge of the criminality of the publication. The jury had not said there was any thing criminal in it; and there were no doubt many persons in the court, even at the time of the decision, who, if the pamphlet had been submitted to their judgement, would not have found any thing criminal in it. We all know that every man in this kingdom is fully authorised to point out, and to reprobate in the severest terms, abuses in the administration of government, wherever these exist; and they might have conceived that nothing else was contained in it. If the criminality of the pamphlet had been very obvious, it was not to be sup posed that the persons whose business it is to watch over the public tranquillity, could have required six months time to deliberate upon it before they could determine whether it could be reckoned of a dangerous tendency or not,-for so long at least the pamphlet had been published before any notice was taken of it. But if men who, ex officio, are bound to watch over the public tranquillity, and whose business it is to understand things of this nature, were so much difficulted in this case, can we be surprised that men, acting in the ordinary course of business, could see nothing improper in this publication? It is the business of jurymen to take into their view every circumstance that can tend to aggravate or to alleviate the criminality of the deed libelled; especially in such cases where the animus alone constitutes the criminality; and more particularly in regard to those cases where no discriminate line can be drawn to ascertain the precise bounds between praise worthy and guilty actions.

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question at that time before the court was, whether the verdict that had been returned by the jury was a just and legal verdict, upon which their lordships could proceed to give judgement; or if it was defective and imperfect as had been contended for by the counsel for the pannels, so as not to authorise judgement to pafs upon it. On this head, he himself had no doubt. It was a full and clear verdict, he said, including every thing that the law required to render it decisive and valid; and though the jury might no doubt have gone farther, and if they had pleased, might have made the verdict general, by either acquitting or condemning, and thus have left the court only the power of uttering the sentence; yet he conceived they had in this case acted with much more propriety, by confining themselves to the proper office of a jury, without incroaching on the province of the court, by merely finding the fact proven, leaving the court, as ought always to be the case, to draw the inferences that would necefsarily flow from the fact. The libel stated that the pamphlet there mentioned is a seditious pamphlet; and the court, on the pleadings for the relevancy, having previously determined, that if

*This word will not be intelligible to persons unacquainted with the law of Scotland. In criminal cases that are tried before the Court of Justiciary in Scotland, it is customary for the counsel for the pannels, at the commencement of the trial, to make such remarks upon the indictment as occur to them, as tending either to render the indictment nugatory, or to confine the punishment to the mildest sort pofsible, in case the jury fhould find the pannel guilty. On that occasion, the court, after due deliberation, may either quash the trial entirely, if they find the indictment such as, if even fully proven, would not be relevant to infer the pains of law; or they find the indictment relevant to infer the pains of law: and at that time they usually state to the jury, whether the law will award death in that case, or only an arbitrary punishment. It is this circumstance in the trial that is here

the libel should be proven, it would necefsarily infer the pains of law, had fully determined that point; the jury therefore had nothing to do with it whatever, and in the verdict they had returned, they had paid a proper de ference to the court in this instance : that if the deed libelled was in itself evil, the committing that deed must alone be deemed a sufficient proof of the malus animuš

alluded to. To give an example: Suppose, in the case now under consideration, the indictment had charged the pannels simply with "Printing and publishing a pamphlet called the Political Progrefs of Britain," the counsel for the pannels would have pleaded, that though the whole circumstances libelled should be proven, no punishment could be relevant to follow on any verdict the jury could give: and there is little doubt but the judges would have concurred with them, and would have thus dismissed the cause as irrelevant. Suppose again, as actually happened in the first indictment with which the pannels in this case were served, it bore" That the pannels had printed and published a treasonable and seditious pamphlet, entitled THE POLITICAL PROGRESS OF BRITAIN," still the counsel would have contended, that no punishment would be relevant upon this indictment, because the pannels had not been charged with having published this treasonable pamphlet from a wicked intention; in the same manner as a person could not be punished for uttering a forged bond, unless he had been at the same time indicted for having done so, knewing it had been forged; and there is reason to believe, the judges in this case also would have sustained the plea, and dismissed the cause as irrelevant. So conscious at least did the crown lawyers seem to be of this, that they did not choose to bring forward the trial on that indictment; or at least, the trial, while the indictment stood so, was deserted, under the pretext that the author of the pamphlet, who had been served with an indictment in due form at the same time, had not been apprehended: and the public were disposed to believe, that the real cause of delay was the above mentioned flaw in the indictment. At length the pannels were served with an indictment, specifically charging them "With ha ving printed and published, with a wicked and malevolent intentior, A TREASONABLE AND SEDITIOUS PAMPHLET, entitled THE POLITICAL PROGRESS OF BRITAIN;" and it was this indictment, so dmended, that the judges had found relevant to infer the pains of law.


of the person that committed it: that as the jury had found it proven, that the pannels had printed and pubfifhed the pamphlet libelled on, it necefsarily inferred that they meant it should include all the particulars libelled. For these reasons, he was satisfied that the ver dict was as complete as could be desired; and fully authorised the court to award whatever punishment their lordships fhould think proper to inflict upon the pannels. He then proceeded seriatim, to collect the opinion of each of the judges as to the punishment; who finally concurred in awarding the punishment to be six months imprisonment to Mr Robertson, and three months to Mr Berry; the parties respectively to find bail that they should keep the peace for three years, under the penalty of L. 100 each.

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It deserves farther to be noted, that in the course of these speeches, one of the learned lords took occasion to remark, that it was often asked why the law lately enacted respecting juries in England, did not extend to Scotland? For the best reason in the world, he said, vix. because juries in Scotland were already, long before that act took place, in the full pofsefsion of all the privileges that act conferred upon juries in England. It was therefore unnecessary, and would have been absurd, to extend a privilege to Scotland with which it was already fully invested.

It deserves also to be remarked, that however much the opinions of the learned bench might differ as to other particulars, and however much it might seem to clash with some of the opinions above stated; yet they all concurred in admitting, in the most unequivocal manner, that the power of the jury extended to the cognizance of the whole of the matter laid before them; and that if they chose to exert that power, nothing could prevent them from

giving a clear and definitive acquittal or condemnation by, a general verdict, either for or against the pannel, without a power in the judges, or any other person, to quarrel er gainsay whatever they had done. This was the only point in regard to which there was no diversity of opinion ; and jurymen will do well to advert to this in future ; because it affords a proper clue to direct their conduct in all cases where they shall have any doubt, and lets them know what is the only mode of insuring a certain compliance with what they with fhould be effected.

The opinion of men and of judges respecting criminal jurisprudence has altered very much in every part of Britain within this present century; and from the opinions delivered in this case it appears, that it is only in regard to a very few particulars the law is yet firmly and decidedly fixed. Before the noted trial of Carnegie of Finhaven, the ideas respecting criminal jurisprudence were much lefs liberal than at present; but by the spirited conduct of Mr Dundas, the late respectable president of the Court of Session, who on that occasion, as counsel for the pannel, combated successfully the opinion of the whole bench of judges, he gained immortal honour to himself, and conferred a favour on his country, that ought to render his name respected by every person who knows how to value the blessings of freedom and personal security. The libel in that case bore, "That Mr Carnegie had, with a wicked and malevolent intention, wounded the body of the earl of Strathmore by a sword, of which wound he died;"-and in the pleadings on the relevancy. the judges declared, that if the jury should find the simple fact, as there set forth, proven, it was sufficient to infer the pains of death. In this case the judges assumed to themselves the power of affixing a degree of criminately, to the fact libelled, which they contended the jury

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