Mitchell Library, State Library of New South Wales
Papers, mostly of Henry Dundas, concerning the Scottish Martyrs, 1793-1796, 1814
MLMSS 948
[Page 1]
Edenr. 14 De r. 1793
Dear Sir
The Act 25th G [indecipherable] 3d. cep 46 appears not to have been continued, so far as regards the removal of Convicts to temporary Places of confinement. – The Detention of Muir Palmer, & indeed the whole Scots Convicts on board the Hulks is therefore illegal: At least I am afraid a Court of Law will think so – But
I
[Page 2]
I beg you will look to [section]. 1 & 2 d. of the Act, particularly the [section] 2 d. both of which are still in force: & tho confinement on board the Hulks may not perhaps be considered as falling under it, I can have no doubt that you have full Powers to keep these Convicts in any English Prison, or to ship them on board any Vessel bound to Botany Bay, or any other Place beyond Seas, to which His Majesty
[Page 3]
may be pleased to direct them to be transported. - - I wish you would shew the Act & this Clause to the Attorney General; But if I am wrong in this idea, I see no way by which Convicts can ever be transported from Scotland, unless you send a Ship on purpose. Inclosed you have copies of the Sentences, which are in the usual form – I remain
Your Obedt. humble Srvt
R Dundas
[Page 4]
Sentence against Mr. Muir
The Lord Justice Clerk, and Lords Commissioners of Justiciary having considered the foregoing verdict whereby the assize all in one voice Find the Pannel Guilty of the Crimes libelled the said Lords in respect of the said verdict in terms of an act passed in the 25th year of the reign of his present Majesty intiteled ‘An act for the more effectual transportation of Felons and other offenders in that part of Great Britain called Scotland ordain and adjudge that the said Thomas Muir be transported beyond seas to such place as his Majesty with the advice of his Privy Council shall declare and appoint; and that for the space of Fourteen years, from this date
with
[Page 5]
with Certification to him, if after being so transported, he shall return to and be found at large, within any part of Great Britain during the said Fourteen years, without some lawful cause and be thereof lawfully convicted he shall suffer death; as in cases of Felony without benefit of Clergy by the law of England. And ordain the said Thomas Muir to be carried back to the Tolbooth of Edinbr. therein to be detained till he is delivered over for being so transported, for which this shall be to all concerned a sufficient warrant.
(signed) Robt McQueen
[Page 6]
Sentence against Mr Palmer.
The Lords Eshgrove and Abercromby – In respect of the foregoing verdict, they in terms of an act of parliament passed in the 25 year of his Majesty’s reign intitaled An Act for the more effectual transportation of Felons, and other offenders in that part of Great Britain called Scotland"; ordered & adjudged and hereby order & adjudge that the said Thomas Fyshe Palmer be transported beyond the seas, to such place as his Majesty, with the advice of his Privy Council, shall declare and appoint and that for and during the space of seven years from and after this date; with certification to him, that if, being so transported, he shall return to and be found at large within any part of Great Britain
without
[Page 7]
without some lawful cause during the space of seven years, being thereof lawfully convicted, he shall suffer death, as in cases of Felony without benefit of Clergy, by the law of England for which this shall be a sufficient warrant to all concerned. And further decerned and adjudged and hereby Decern and adjudge the said Thomas Fyshe Palmer to be carried from the bar back to the Tolbooth of Perth, therein to remain till an opportunity offers of transporting him in manner above mentioned, requiring hereby the Magistrates of Perth, and keepers of their Tolbooth to receive and retain him accordingly.
[Page 8]
Sir,
In obedience to His Majesty’s commands, signified to us by your letter of the 17th. instant, inclosing certain papers relative to the cases of W. Palmer & Mr. Muir, prisoners on board the Hulks; & requiring us to report to you for His Majesty’s information, our opinion how far they can be legally detained on board the Hulks, till they can be transported in pursuance of their sentences; & in case we should be of opinion that the same is illegal, then to report to you for His Majesty’s information, the steps which we should be of opinion would be most advisable to take for their detention until their respective sentences should be carried into execution, or they should otherwise be dealt with according to law; we have perused the papers so transmitted to us, & the act of the 25th year of His Majesty’s reign for the more effectual transportation of felons & other offenders in that part of Great Britain called Scotland, & to authorise the removal of prisoners in certain cases, which act we are led, by the sentences against W. Palmer & W Muir, & by the letter of the Lord Advocate of Scotland transmitted to us, to conceive is the only authority under which the sentences were passed, & the removal of W. Palmer & W. Muir to the Hulks made. We observe that the provisions in the 4th
[Page 9]
section of that act, under the supposed authority of which we apprehend the removal was made, were by the last section made to continue & be in force only until the 1st of June 1787, & from thence until the end of the then next session of parliament; & we do not find that those provisions have been continued by any subsequent act. We therefore conclude that the act is so far expired. The consequence appears to us to be that the removal of W. Palmer & W. Muir to the Hulks cannot be supported under the authority of the 4th section of that act, supposing all the proceedings in such removal to have been regularly had according to the terms of the act; which we presume to have been the case, altho we cannot clearly collect it from the papers transmitted to us. We therefore apprehend that the detention of W. Palmer & W Muir in the Hulks is illegal, unless it is warranted by some other authority than the 4th section of the act to which we have referred. The sentence against each of W. Palmer & W. Muir appears to have been made expressly under the authority of the 1st. section of the act, & directs that each shall be detained in the prison to which he was then remitted, until he should be delivered over for being transported according to the sentence". We apprehend, therefore, that the delivery of W. Palmer & W. Muir to the persons who brought them to the Hulks, could only be justified as a delivery
[Page 10]
for the purpose of transportation; & we think the officers to whose custody the prisoners were respectively upon their respective sentences remitted, might have lawfully carried them, under the 2d. section of the act, from Scotland, thro’ any county of Great Britain, towards the sea-port or place from which they were to be transported. But it does not appear to us that there exists any authority for the removal of such persons from the places of their confinement in Scotland to any place in England, except for the purpose of immediate transportation , as the provisions in the 4th section, which authorise intermediate temporary confinement, are (as we conceive) expires; & as the removal of Mr Palmer & Mr. Muir to the Hulks was not for the purpose of immediate transportation, but for the purpose of keeping them in a temporary place of confinement until transportation, it seems to us that the proceeding was illegal; & that having been unlawfully brought to the Hulks, they cannot there be lawfully detained under the authority by which they were carried thither; & we cannot discover any authority by which the detention in England of persons sentenced to be transported by the courts in Scotland can be justified, except for the purpose of immediate transportation, or in consequence of their being at large in Great Britain without lawful cause before the expiration of their respective sentences, which is the subject of the 3d. section of the act to which we have
[Page 11]
before referred. We conceive that under the authority of that section, persons so sentenced, & being at large in England, may be detained to answer a charge of being at large in Great Britain without lawful case. But Mr. Palmer & Mr. Muir having been brought to England against their will, & in the supposed due execution of a law which appears to be no longer in force, we doubt the propriety of prosecuting them capitally upon the 3d. section of the act, & we think it probable a grand jury would throw out a bill of inditement if preferred; & we are not aware that a court in England before which they might be brought, in consequence of their detainer upon such charge, to be discharged, no bill being found against them, could order them to be remitted to Scotland to undergo the terms of their sentences there. By the 31. Cha.2.c.2. [tick] .12, it is provided that no subject of the realm, inhabitant or resident of the Kingdom of England, shall be sent prisoner into Scotland; & such imprisonment is by the act declared illegal, & severe penalties are imposed on those who shall offend against this law; & altho by the 16th section of the same act it is provided, that if any person at any time residant in England shall have committed any capital offence in Scotland, where he ought to be tried for such offence, he may be sent there to receive such trial, in such manner as the same might have been used before the act; & altho, by a liberal construction this proviso might perhaps be extended to the case of a
[Page 12]
person convicted in Scotland of a capital crime, & sentenced there, & might therefore operate to except the remission of a person so convicted to Scotland to undergo his sentence, from the general prohibition contained in the 12th section, yet it seems to us that this proviso does not extend to the cases of Messrs Palmer & Muir, who were convicted of a crime of which the punishment appears not to have been capital, & who have been therefore sentenced to transportation, & not to capital punishment. It also appears to us that the 16th section of the [indecipherable] Cha. 2.c.2. excepting capital offences only from the operation of the 12th section, may warrant a conclusion, that in cases not capital a subsequent law must be necessary to authorise the commitment in England, & removal to Scotland for trial, of an offender against the law of Scotland. Accordingly, by the 13. Geo: 3.c.31, s.2, after reciting the deficincy of the law in this respect, it is provided that a person against who a warrant shall be issued by the proper officer in Scotland, for any crime or offence against the laws of that part of the united kingdom, may be apprehended in England by virtue of such warrant, indorsed by a justice of peace in England, & may be conveyed to Scotland, to be there dealt with according to law. If this act extends to the case of a person convicted & sentenced in Scotland, it appears to us to authorise the arrest of Messrs. Palmer & Muir in England, upon warrants issued for that
[Page 13]
purpose by the proper authorities in Scotland, & indorsed by a justice of peace in England; & that they may thereupon be remitted to Scotland in the manner prescribed by the act. But we think there is room for considerable doubt whether the words of the act extend to persons convicted & sentenced, or apply only to persons accused, & to be tried upon the charges made against them. If Messrs. Palmer & Muir were at large in Scotland, being out of the proper of the officers to whom they were remitted on the sentences, before they were brought to England, we apprehend that, on evidence of the fact, warrants may be issued against them in Scotland for that offence; & that upon such warrants they may be apprehended in England under the 13.G[indecipherable] 3, & sent to Scotland; & we presume that the court before who they may be brought in Scotland upon such charge, may, if such charge shall not be proceeded upon, send them to the prisons from which they were respectively taken, to undergo their sentences of imprisonment & transportation. But on this head we submit the propriety of consulting the Lord Advocate of Scotland; & we also submit the propriety of charging Messrs. Palmer & Muir with a capital offence, under the circumstances upon which we have observed in speaking of a similar prosecution in England. As we conceive the removal of Messrs. Palmer & Muir from Scotland to the Hulks to have been illegal, we apprehend
[Page 14]
their removal from the Hulks to any prison, or other place in England, as a place of temporary confinement until transportation, would also be illegal. If a contract should be entered into for their transportation to such place as His Majesty shall order (for we apprehend no such order has yet been made) & if the proper warrants shall be issued in Scotland for delivery of them to the contractor, & such contractor shall take them on board the ship provided for that purpose, they being delivered to such contractor by persons authorised by such warrants to deliver them to him, we think the imprisonment on board that ship for the purpose of immediate transportation, under such circumstances, might be supported, notwithstanding their having been intermediately in illegal confinement. Considering, however, the many difficulties which have occurred to us in our reflections upon this case, & apprehending that many other persons may be detained in the Hulks under the supposed authority of the 4th section of the 25 Geo: 3.c.46, we beg leave to suggest the propriety of taking the opinion of the judges on the subject; which we find was done in the case of Colonel Lundy, arrested in England, on a charge of a capital offence committed in Ireland, in the first year of the reign of their late Majesties King William & Queen Mary. If that
[Page 15]
shall not be thought advisable, & it shall appear clearly that the 4th. section of the 25.G [indecipherable] 3.c.46. was a temporary law, & is expired, it seems to us that it may be proper to apply to parliament for a revival & further continuance of the law, & to render legal acts done under its supposed authority after its expiration, & to indemnify those who have been concerned in such acts; & we beg leave to submit whether it will not be advisable to suffer things to remain in the mean time (if possible) in their present state – After we had written the preceding observations on the questions referred to our consideration, we received, this evening, several papers, which we could not sooner obtain, concerning certain convicts transported from Ireland in the year 1789, & who had been landed in Newfoundland, & afterwards sent to Spithead. It does not appear to us that they were permitted to land there; & we therefore think it probable that they never were within the body of any county in England. We find they were sent to Ireland in the custody of one of His Majesty’s Messengers, by warrant from His Majesty’s principal secretary of State for the Home department; under the sanction of the opinion of the lords of His Majesty’s privy
[Page 16]
council, met for the purpose of considering what measures were proper to be taken respecting them, The Lord High Chancellor, & The Chief Justice of His Majesty’s court of King’s bench attending - We are of opinion that the case referred to our consideration furnishes questions of much greater importance, & not less difficulty; & it occurs to us that the case of the Irish convicts does not for a precedent upon which we ought to consider ourselves justified in advising any proceeding to be had upon the authority of our sentiments only, in the present matter, which may be attended with most important consequences, & which may affect a great number of persons – We therefore finally take leave to suggest the propriety of requiring, to any measure which may be adopted on the present occasion, a sanction equally high & respectable with that which was given to the measure pursued by his Majesty’s secretary of state in the case of the Irish convicts.
We have the honour to be,
Sir, Your most humble servants
John Scott
John Mitford
19th Decr. 1793
The Right Honourable
Henry Dundas, [indecipherable]
[Page 17]
19 Decem. 1793
Attorney & Solicitor General.
Report on the cases of Mr Muir & Mr Palmer
[Page 18]
Edinburgh 27 Decr. 1793
Sir,
I have the honor of yours with the Representation for Thomas Muir and Fisch Palmer, which I immediately laid before the whole Judges of the Court of Justiciary for their opinion. In writing to you it would surely have been unnecessary to say much as if you are as well acquainted with the Criminal Law of Scotland as any of us, but as it occurred to me that others who had not the same opportunity of being acquainted with the Law of Scotland might wish to be satisfied, We have therefore given our opinion at considerable length in a Report signed by me by the appointment of the other Judges, which I herewith transmit to you, and from a perusal thereof, I apprehend it must be obvious that Transportation was known in Scotland prior to the act of 1703, at the date of it, and down to the present time. [indecipherable] that in the Language of the Law of Scotland
banishment
Rt. Honble
Henry Dundas
[Page 19]
Banishment is the generic term for denoting the punishment, and that Transportation was not considered as a punishment separate and distinct from banishment, but as one of the mores of carrying the Sentence of Banishment into Execution, and which was adopted when the heinousness of the offence rendered it proper, and that of consequence the Court of Justiciary have full Power to transport, even for the precise named Crimes that are the objects of the Statute of 1703. – But [indecipherable] . The cases of Muir and Palmer have nothing to do with the Statute of 1703. for the crime of which they were convicted Viz. that of Sedition for the very purpose of overturning our Constitution and Government is in its nature different from that of leaving making, which altho it may have a tendency to promote Sedition, yet in our Law is considered as a verbal Inquiry.
Upon
[Page 20]
Upon the whole, as I am perfectly clear that the Court have Full Power to transport for the Crime of Sedition, so I am equally clear that in this case the Punishment is not granted than their Conduct suited, and that any mitigation by the interpretation of the Royal Mercy would in the present conjecture be a most inexpedient measure. In the course of two or three weeks there will be no less than five different Trials before the Court of Justiciary for the Crime of Sedition.
I have the honor to be with much regard,
Sir,
Your most obedient humble Servant
Robt. McQueen
[Page 21]
Copy of a Letter from the Lord Chief Justice
Clerk to the Rt. Honble Henry Dundas, dated
Edinburgh 27 Decr. 1793.
Muir & Palmer
[Page 22]
Copy
Report of the Judges of the High Court of Justiciary, relative to the Cases of Thomas Muir, and Thomas Fisch Palmer.
The Lord Justice Clerk having communicated to us, a Letter from Mr Secretary Dundas to His Lordship dated 15th Decr. 1793 mentioning that a Representation had been delivered to him, stating objections to the legality of the Sentence of Transportation pronounced against Mr Muir & Mr Palmer and founded upon the Scottish Statute of 1703, & inclosing so much of the said Representation as relates to that question, and desiring that His Lordship on consultation with the Lords of His Majesty’s Court of Justiciary, should report to him whether from what is therein stated, or any other grounds His Lordship saw cause to doubt of the legality of the said Sentences, We have considered the said excerpt of the representation and the opinion thereon is as follows.
Great part of the Criminal Law of Scotland, even in capital cases is founded in usage, not institute and where the Punishment of any crime is not capital, is not ascertained by special Statute, the High Court of Justiciary have by the common Law of Scotland power to
punish
[Page 23]
punish every such crime by what is termed, an Arbitrary Punishment.
In the Law of Scotland and Arbitrary Punishment signifies such Punishment, less than Death as upon due consideration of the nature & circumstances of the case, shall in the discretion of the Court appear to be adequate to the offence.
Transportation to places beyond Sea, has long been known as a Punishment which the Court of Justiciary have power to inflict by the Common Law of Scotland, independently of any Statute. But altho’ the Power of inflicting Transportation be not derived from any Statute, it is expressly recognized in the Act 1701. ch. 6. as a mode of Punishment, which Act has ever been considered as the Chief Security of the Personal Liberty of the Subject.
As the Court of Justiciary have the Power of transporting for every offence which merits that Punishment, they must necessarily have the power of inflicting it in cases of Sedition, which is a very heinous Crime, and of the most dangerous tendency, unless it can be shewn, that a special exception, with regard to that Crime, has been introduced into the Law of Scotland.
It is maintained in the aforesaid Representation that by the Act of 1703 Cap:4 entitled Act anent
Leasing
[Page 24]
Leasing makers & Slanderers," the Punishment was limited to Fine, Imprisonment, or Banishment" by which the Law relative to this offence seems to have been finally settled and unless the word Banishment, will necessarily comprehend & denote, Transportation the Judges of Scotland seem to have exceeded their Powers by affixing to this Crime of verbal Sedition, a Penalty different from that which had been appropriated to it by the Law and more severe.
The Act of 1703 on which this objection is founded in these Words.
Act anent Leasing-makers and Slanderers."
Our Sovereign Lady considering that by the Acts of Parliament following Viz. the Act James 1. Part. 2 Chap 43 Intitled Leasing-makers [indecipherable] & Goods Act James 6 Parlt. Chap 134
and
[Page 25]
- and consent of the Estates of Parliament abrogate & discharge in all time coming the foresaid Sanction and pain of Death & confiscation contained in the said Acts, & Statutes, and ordains that the Punishment of the Crimes therein mentioned shall for hereafter only be arbitrary, according to the demerits of the Transgression, that is, by fining, Imprisonment, or Banishment, or if the Party Offender be poor & not able to pay a Fine, then to be punished in his body/Life & Limb always preserved.
Upon this Statute we are of opinion, that according to the Law of Practice of Scotland, The Court of Justiciary would not have exceeded their Power in sentencing Mr Muir & Mr Palmer to Transportation even if they had been accused & convicted of the Crime of Leasing making. The sole intent & object of the Act 1703 was to substitute an Arbitrary, in the place of a Capital Punishment upon Leasing making from the manner in which the Statute is worded it is abundantly plain, that it was not the Intention of the Legislature to limit & restrain the Court of Justiciary from inflicting the highest Arbitrary Punishment which at common Law they were entitled to inflict. But not to dwell upon this, We must in the next place observe, that in the Language of the Law of Scotland,Banishment, is a generic Term, importing a Punishment , more or less severe according as the Sentence may direct, and Transportation, is not a different kind of
Punishment
[Page 26]
Punishment, but only one of the modes of Banishment in the discretion of the Court.
Prior to 1709, the Term Transportation is not to be found in any Scots Statute, except the Act of 1701. Chap 6 where as had been mentioned the right of transporting is recognized as being vested at Common Law in the Courts of this Country. Accordingly both before and after 1703 the Term Banishment was used in Criminal Proceedings, as comprehending Transportation under it. This is fully established by the following Extracts from the records of the Courts of Justiciary of sundry cases which occurred between 1607 amp; 1754.
7 May 1607 case of John Vallance, James Corschile and Hugh Smith. The Lords ordained and adjudged the said Hugh Smith to be banished to His Majesty’s Plantations in America, and ordained him to be detained Prisoner, till occasion be had of his
Transportation and discharged him over to return under the pain of Death.
17 Nov.r 1690 The Lords banish the said William Ranken to some of His Majesty’s Plantations never to return under the pain of Death, & ordains him to be detained Prisoner till occasion be had for his Transportation
or
[Page 27]
or till he find caution for his removal to the said Plantations, under such Penalty as the Lords shall modify.
15 Feby 1692 – Richard Guine. The Lords do banish the said Richard Guine forth of this Kingdom never to return in time coming under the pain of undergoing such Punishment as the said Lords shall appoint and ordain him to be carried back to Prison and to be detained therein till he be transported.
21st Nov.r 1693. Helen Scot. The Lords decerne & adjudge her to be scourged by the hands of the Hangman from the Castlehill to the Netherbow of Edinburgh [indecipherable] and then to be returned to Prison, till occasion be had for her Transportation to Their Majesty’s Plantations, to which Plantations the said Lords banish her never to return under pain of what farther Punishment the Lords of Justiciary shall be pleased to inflict.
12 March 1701. Thomas Anderson and John Weir. His Majesty’s Solicitor produced to The Lords of Justiciary the following recommendation. at Edinburgh the 4th March 1701 Years, The Lords of His Majesty’s Privy Council having considered the representation & information given in to them against Thomas Anderson and John Weir
who
[Page 28]
who had been condemned by the Lords of Justiciary to die for the crimes of which they were found guilty, which Sentence of Death was formerly committed and changed into a Sentence of Banishment forth of His Majesty’s Dominions by the said Lords, not to return into this Kingdom under the Pain & Certification of having the foresaid Sentence of Death put in execution against them; and the said Lords finding that the said Thomas Anderson and John Weir Prisoner in the Tolbooth of Edinburgh having incurred the foresaid Certification the Council have revoked and hereby revokes and discharges the foresaid Commentation and change of Sentence from Death to Banishment and have remitted [indecipherable] It then goes on to direct the Lords of Justiciary to name a day for their execution.
In the above Act of Privy Council the Sentence is twice termed a Sentence of Banishment but that it was in effect what is now called a Sentence ofTransportation juley appears from the following farther Proceedings on their case, which stand in the record of the 17th
March
[Page 29]
March 1701
Thereafter His Majesty’s Advocate produced in presence of the said Lords an Act & Recommendation of Privy Council, anent Thomas Anderson and John Wier, Prisoners whereof the Tenor follows at Edinburgh the 13th day of March 1701 years anent the representation given in to The Lords of His Majesty’s Privy Council by Sir James Steward His Majesty’s Advocate, shewing the Lord Commissioners of Justiciary upon the remit of the said Lords of Privy Council made to them, concerning Thomas Anderson and John Wier who have forfault the commutation of the Sentence of Death pronounced against them to Banishment, as to Thomas Anderson find that in March 1695, The Lords of Privy Council did alter the Sentence of Death pronounced against him to Banishment, not to return under the pain of Death, and that accordingly he was liberate and sent to Flanders but having returned and being again apprehended, the said Lords of His Majesty’s Privy Council, upon the 9 of February 1699 did banish him & some
others
[Page 30]
others to His Majesty’s Plantations in America, they enacting themselves not to return to His Majesty’s Dominions which is all the order of Council bears, but their Enactment bears furder, that they shall not return within His Majesty’s Dominions under the pain of Death, whereby it appears that the Sentence of Death against Anderson was in the Year 1695 plainly commuted under the condition foresaid, but he having broke the said condition it pleased the said Lords of Council to banish him to America, but without the Certification of Death contained in their Sentence, albeit it be express in his Enactment; and as to John Wier the said Commissioners of Justiciary find, That by the first deliverance of the said Lords of Council upon the 17th day of July 1699, the Sentence of Death pronounced against him was simply commuted, with this addition only that he should continue in Prison till farder orders for his disposal, and that it was not till the 21st day of December thereafter that they ordained him to be banished not to return under the Pain of Death, and that he enacted himself accordingly whereby it appears that the first deliverance did change and take off the sentence simply saving with the addition foresaid and therefore His Majesty’s Advocate has thought fit to lay the case again before Their Lordships that they might do therein as they should see cause. The said Lords of His
Majesty’s
[Page 31]
Majesty’s Privy Council, having considered the above Representation given in to them by Sir James Stewart His Majesty’s Advocate anent John Weir and Thomas Anderson, They notwithstanding of the said Representation do hereby remit of new to the said Lords Commissioners of Justiciary to appoint a new day or days, for putting the former Sentences of Death pronounced against the said two Persons to execution and to give order to the Magistrates of Edinburgh to see the said Sentences duly execute upon the day or days to be affixed by the said Lords Commissioners of Justiciary. Extracted by me Sic Subscribitur: Gelb. Elliot. ll. S
12 April 1701 John Norton after appointing scourging and Pillory. and thereafter the said Lords do banish him furth of this Kingdom never to return to the same again under all the highest pains, and ordain him to be carried back to Prison, and therein to remain until a convenient occasion offer for his Transportation
11 Nov:
[Page 32]
11 November 1702 – Elspeth Johnston and Isobel Crawford. – Like as the said Lords Banish the said Elspeth Johnston and Isobel Crawford furth of this Kingdom during all the days of their lifetime under all the highest pains and ordains them to be carried from the water Gate to the Correction house and there to be detained till a fit opportunity offer for their Transportation never to return.
17 November 1702 – Janet Syme Like as the said Lords Banish the said Janet Syme furth of this Kingdom during all the days of her lifetime never to return again under all the highest pains and ordain her to be carried back from the Water Gate to the Correction house and there to be detained till a fitt opportunity offer for her Transportation
8 August 1705 – William Bisset and Jean Currier – After appointing him to be scourged and pilloried the sentence proceeds in these words and deem and ordain him to be Banished furth of this Kingdom either to the East or West Indies and ordain him to lye in prison till an occasion offer for his Transportation to the plantations either in the East or West Indies and ordain her to be carried to the Correction house of Edinburgh from the Talbooth thereof there to remain till an occasion offer for her Transportation to the said plantations and ordain the said William Bisset and Jean Currier to
Enact themselves in their Lordships Books of adjournal never to return to this Kingdom under all the highest pains and ordains the Transporters to find
caution
[Page 33]
caution acted in their Lordships Books that they shall Transport the said William Bisset and Jean Currier to the said plantations and leave them there
21st June. 1715 – John Pringle – The sentence after ordering a whipping proceeds thus and thereafter to be carried back to the said prison there to remain ‘till the sentence pronounced against him at [indecipherable] in May 1714 Banishing him to the East or West Indies be put to due Execution and ordains him to be delivered to any person or persons who shall apply for him to the Magistrates of Edinburgh upon the said person or persons his or their giving sufficient security to the said Magistrates that he or they shall Transport the said John Pringle to the said East or West Indies and leave him there
15 Septr. 1715. William Baillie – The Lords in respect of the verdict to Banish the said William Baillie to His Majistys plantations in the East or West Indies and ordain him to be carried to prison there to remain till Wednesday next the 21st instant when he is appointed to be whipped and thereafter to be carried back to prison there to remain till the first of March next to come and thereafter until an occasion offer of his Transportation and ordain the Magistrates of Edinburgh to deliver the person of the said William Baillie to any person or persons who shall apply for him upon the said person or persons enacting themselves that they shall Transport him to the East or West Indies and leave him there
The same style has likewise been used at a
much
[Page 34]
much later period as appears from the following cases in the Records of Justiciary
8 January 1750 – Alexander Livingston – The Sentence after reciting the verdict proceeds thus - They in respect thereof Banish the said Alexander Livingston to one or other of His Majestys plantations in America never to return to Scotland during all the days of his lifetime and for that End ordained him to be carried Back to the Tolbooth of Edinburgh. therein to remain till a proper opportunity offer for his Transportation and granted warrant to and ordained the Magistrates of Edinburgh and Keepers of their Tolbooth to deliver him over to any Shipmaster Merchant or other persons – whatsoever finding caution acted in the Books of Adjournal under the penalty of 10 £ sterling to Transport and land him in one of His Majestys said plantations and Report a Certificate within year & day of the date of the Bailbond of his being so landed under the hand of the proper officer of the said plantation
Decemr. 1754 – Peter Danoch and William Wier – The Lords Decern and Adjudge the said Peter Darruch and Wm. Weir to be Banished to one or other of His Majestys plantations in America not to or be found in Scotland for the space of seven years and ordain them both to be carried from the Barr back to the Tolbooth of Edinburgh therein to remain ay and until a proper opportunity offer for Transporting them to one or other of His Majestys said plantations and how soon such opportunity offers The said Lords Grant warrant to and impower the Magistrates of Edinburgh & Keeper of their Tolbooth to deliver over the persons of the said Peter Darroch and William Wier to any merchant
Shipmaster
[Page 35]
Shipmaster or other person who shall find sufficient caution and soverly acted in the Books of Adjournal to Transport and Land them in any of His Majestys said plantations and report a Certificate to the Court of Justiciary under the hand of the proper officer of the said plantation"
16 December 1754. – George Johnston and Andrew Mason. The Sentence after appointing them to be whipt proceeds thus. and thereafter to recommitt the said George Johnston and Andrew Mason prisoners to the Tolbooth of Edinburgh therein to remain till a proper opportunity offer for Transporting them – to one or other of His Majestys plantations in America to which place the said Lords hereby Banish them never to return to Scotland during all the days of their Life
It will be remarked that in these Cases the Clause of the sentence which Decorns and ordains or adjudges (and which Clause is the Body of the Sentence) always uses the word Banish as the appropriate phase of style & only uses the word Transport in the after and subordinate parts even in these instances where the purpose to Transport to the plantations is clearest and most undeniable
Upon this article then we are of opinion that the Court of Justiciary are not restrained by the Act 1703. from Transporting for the Crime of Leasing making where from the nature & circumstances of the Case the offence seems to merit that punishment
But we must in the second place observe that Leasing making was not the Crime charged against Mr Muir & Mr Palmer and of which they stand convicted. They were charged not ---------------
[Page 36]
not with Leasing making but with facts importing the Crime of Sedition a Crime well known in the Law of Scotland independently altogether of the Statutes against the Crime of Leasing making – In the Regiam Magistelem the Expression used to denote this Crime is Seditio Regni which Sir John Shoane translates Sedition against the Realm and this Crime was Capital by the Law of Scotland and punished as Treason
But to shew that Leasing making (although in some Cases it may have a tendency to Sedition/Yet that it is a very different offence it will only be requisite to consider the various Statutes against Leasing making Enumerated in the Act 1703.
The first Act against Leasing making the Statute 1424. C.43. entitled leasing makers Tynes Life and Gudes" and is in these words Item, it is ordained by the King and haill parliament that all Leasing makers and Tellers of them which may Engender – discord between the King and His people wherever they may be gotten & be challenged be; them that power has and [indecipherable] Life and Gudes to the King".
The Second Statute against Leasing making is 1540. Chap 83. By which it is
Enacted
[Page 37]
enacted That Gif any manner of persons – makes any evil information of His Hieness to His Barons and Leiges that they shall be punished in sick manner and by the same pains as they that makes Leesings to His Grace of his Lords Barons and Lieges".
The Third Act against Leasing making is 1584. C 134 which ordains That nane of the Kings subjects shall presume or tak upon hand privat lie or publicklie in – Sermons Declamations or familiar Conferences – to utter any false Slanderous or untrue speeches to the disdaine reproche and Contempt of his Majesty his Council and proceedings to the dishonour hurt or prejudice of His Hieness his parents or progenitures or to meddle in the affairs of His Hieness and his Estate present bygane and in time coming under the pains contained in the Acts of parliament against makers and Tellers of Leesings"
The next Act against Leesing making is 1585. C. 10 which is conceived in terms
nearly
[Page 38]
nearly similar to the preceeding Act 1584. C. 134
The fifth and last Statute referred to in the Act 1703. in the Statute 1609. C9. passed after the accession of James the Sixth to the Throne of England which makes it – Criminal by word or write to devise utter or publish any false scandalous or reproachful speeches or writes of the Estates people or Country of England or of any councillor thereof tending to the Remembrance of Antient Grudge &
These are the whole Statutes enumerated in the Act 1703. and we are clearly of opinion that the Crime of Leasing making as described in any of them is different from the Crime of Sedition. It never indeed occurred to any Lawyer in Scotland that Leasing making and Sedition were Synonimous Terms. Accordingly Sr. George Mackenzie who published his Treatise on the Criminal Law in the end of last Century [indecipherable] of Leasing making under the head of verbal Injuries and not under the Chapter of Sedition.
It is obvious that a person may be Guilty of the Crime of Leasing making without incurring
the
[Page 39]
Guilt of Sedition – For Example to carry to the Sovereign a slanderous Report of any of his Barons Great Men and Leiges would be Leasing making within the Express words of the Act 1540. C. 83. But nevertheless it would not amount to the Crime of Sedition on the other hand it is equal obvious that Sedition of the most dangerous nature may – be committed without incurring the Guilt of Leasing making as described in the Statutes above mentioned For Example were a person to publish that the House of commons is a Grievance or that the House of Lords is unneccessary and ought to be abolished or that Royalty itself is useless and burthensome
These offences would amount to Sedition tho they could not be brought under the Statutes against Leasing making
The Crimes charged against Mr. Muir and Mr Palmer amounted to that Species of Sedition which consists in Exciting the people to overturn the Established Constitution and by the Law of Scotland prior to the 7th of Queen Anne would certainly have been punished as High Treason – the Crimes charged against Muir and Palmer appear indeed to fall within the Express words of the Act 1584. C. 130 which it will be particularly remarked is not one of the Statutes enumerated in the Act. 1703.
By
[Page 40]
By the act of 1584, it is statute and ordained by Our said Sovereign Lord and his saids three Estates in this present Parliament, that nane of his Lieges and Subjects presume or tak upon hand to impugn the Dignite and authority of the said three Estates or to seek or procure the Innovation or Diminution of the Power and authority of the same three Estates or any of them in time coming, under the Pain of Treason."
But independently of any particular Statute We are of opinion, that the Crimes of which Mr Muir and Mr. Palmer were convicted amount to a species of Sedition, altogether different from the Crime of Leasing making and described in the Statutes enumerated in the Act 1703 and of course that that Statute cannot apply to the case either of Mr. Muir or of Mr Palmer
Upon the whole then, We must report upon it as our opinion [indecipherable] – That the Court of Justiciary are not restrained by the Act of 1703. from punishing the Crime of Leasing making
by
[Page 41]
by Transportation. [indecipherable] – That the Crime of which Mr. Muir and Mr. Palmer were convicted was not Leasingmaking but Sedition, which by the Common Law of Scotland may be punished with Transportation.
Edinburgh, 27th December 1793. Signed by appointment of the Court
Robt. M. Queen
[Page 42]
Copy
Report of the High Court of Justiciary relative to the Cases of Thomas Muir and Thomas Fisch Palmer
27 Decr. 1793
[Page 43]
The Offence with which Mr. Muir and Mr. Palmer were charged was that of having published seditious Libels, or of having uttered seditious Words. It is therefore that Offence which is known to the Scotch Law under the names of leasing making" or verbal Sedition" which was anciently capital in Scotland. The Punishment of it was limited by the Statute of 1703, to "Fine Imprisonment or Banishment" by which the Law relative to this Offence seems to have been finally settled, and unless the Word Banishment" will necessarily comprehend & denote Transportation the Judges of Scotland seem to have exceeded their Powers by affixing to this Crime of verbal Sedition a Penalty different from that which had been appropriated to it by the Law, and more severe.
So harsh an Extension of the Sense of the Word Banishment" in the Statute appears extremely unreasonable when we consider how wide is the Difference between Banishment & Transportation
both
[Page 44]
both in the Nature of Things, & in the Laws & Practice of Nations. Banishment imports only an Exclusion from a Community: Transportation implies that Exclusion executed in a compulsory & commonly ignominious manner, always aggravated by Confinement to an appointed Spot, and often by the obligation of laborious Servitude.
Very singular would be the Language of that Code in which they were convertible Terms, & which by the Word denoting the one Punishment should convey an Authority to inflict the other. In exterior the common Circumstance of Exile gives them some Resemblance –
But in Spirit & Effect they differ as widely as Respect & [indecipherable] differ from Rigour and Ignominy.
Punishments so distinct have not been confounded in the Laws of any civilized Nation. They were distinguished in those of Rome which are
of
[Page 45]
of so high Authority in Scotland. They are so distinct with Us that Banishment properly so called can only be inflicted by the Authority of Parliament*
*Coke 2.d Institut: P. 47.
and they are not only known familiarly to be separate Punishments in the Practice of Scotland, but cases exist posterior to the Act of 1703, in which Men were banished that Country with Certification if they returned from their Banishment they should be transported. So great is the Difference between these two Punishments in the Eye of the Scotch Law that Transportation is thus supposed as far to surpass Banishment as Death itself surpasses Transportation.
The
X The deportatis ad insulam", it is well known, was an Invocation many Centuries posterior to the ancient Banishment Agua & ignis interdictis" & perfectly distinct in its Nature & legal Effects from the similar mode of recent Banishment, called relegatio" – vide Vin: ad Institut: P. 69
[Dobell’s 16/6/37]
[Page 46]
The particular Circumstances of the Act of 1703 will still less justify the extended Meaning of the Word – Banishment than general reasoning on the Nature of the Punishment. The form of Words used in it is taken from an Act of 1609, & these two Statutes being in pari materia are to be understood in the same manner. But the Word Banishment could not have imported Transportation in 1609, more than Sixty Years before the Power of Transporting was even exercised X [after the Battle of Bothwell Bridge] by the Privy Council in Scotland. Neither therefore must it be construed to comprehend Transportation in the Act of 1703 which was itself two Year prior to the first recorded Instance of Transportation, inflicted by the Court of Justiciary. It must be further observed that the Act of 1703 was a Law of Mitigation, & is therefore to be largely interpreted
in
[Page 47]
in favor of those who were the Objects of its benignity.
There seems to be therefore no Colour for inflicting Transportation in Virtue of this Statute, unless a New Principle be admitted in the Construction of dubious criminal Laws that a general Term for a Punishment will necessarily denote the most aggravated species of it in direct contradiction to all the wise and Benevolent Maxims of civilized Jurisprudence which teach us to understand mitigating Laws extensively, to construe penal Words narrowly & rigorously, and to favor in the Decision of every doubt the Life, the Liberty, & the Honor of accused Men.
These are the Reasons which create a Doubt of the right of the Court of Justiciary to inflict the Punishment of Transportation on Mr. Muir and Mr. Palmer in Virtue of
the
[Page 48]
the Act of 1703. And from that Statute alone they can derive any Authority to punish this Offence, both because it must be understood to supersede and abrogate any thing contrary to its Provisions which had previously existed in the Scotch Law & because in the only Case of this Crime which has occurred since that time in 1713, the Act of 1703 is stated in the Indictment, and because the Judges themselves in the Case of Mr. Muir, in speaking of the old Law of Scotland which made sedition capital, can only mean to contradistinguish from it the Act of 1703 and do therefore expressly claim to act under the Authority of that Statute
[Page 49]
Extract of a Paper received from Lord Lauderdale, Mr. Grey, and Mr. Sheridan
Copy.
Muir & Palmer
[Page 50
My Dear Sir
You will find that the [indecipherable] opinion was returned by me very soon after I received it with some remarks which had occurred to me upon It
I wish you would look at the Scotch Act 1670. c. 2. which confirms the exposition of Banishment by Transportation to the Plantations & answers the Cavil agt. the 1st for ordering a Witness who refused to be sworn to be committed –
Yrs. ever
Loughborough
Sunday
[Page 51]
Dobell’s 16.6.37
[Page 52]
179[indecipherable]
Lord Loughborough
Muir & Palmer
[Page 53]
Letter from Lord [indecipherable]nderland.
--
[indecipherable] 23d Jany 1794
(case of Muir)
[Page 54]
(The Rt Honble Mr Secretary Dundas.)
Murrayfield 20th Jan.y 1794
My Dear Sir
Tho I am sensible how much you must be engaged at present, Yet as the Affair of Muir seems to take a very serious Turn it is natural for me to wish that you or any other who takes a share in the debate should not be misled by any observations of Mine. with this View I have read over the Tryal of Thomson & Archmorlie 14th April 1701 with great Attention in the Record & I observe there is a Difference in the Words from my Fathers Abridgement tho possibly it may not much vary the Argument. The Indictment is very diffuse I shall order a Copy of it to be sent to you. You will thence observe tho It does not charge sedition as the Technical word for a Crime, (as my Fathers Abridgement does). It charges two different kinds of Crimes, The one Leasing making which relates to more precisely the Kings proceedings The other Impugning the Authority of Parliament & the King & intyceing People by writing Printing
[Page 55]
or other malicious & advised speaking to levy War agt the King which two last charges I take properly to be sedition. And in the Course of the Indictment Inciting to sedition Insurrection or Rebellion are mentioned as an ingredient in the Crime so that it may be justly constined to contain a charge of sedition tho the Crime be not specifically charged. And in the Course of the Argument on the relevancy it seems admitted on both sides that the Crimes charged if made out by Just inference would at Common Law independent of statute be the subject of Arbitrary Punishment. The Lybel [indecipherable] that the Pannels were guilty of said crimes consequently there was more than one & In the end it charges the Pannels with Leasing Making & Treason –
By the Interloquton on the Relevancy it is found That the Indictment & Qualifications thereof did not infer either the Crimes & Pains of Treason nor the Pain of Death & apologies therefrom
[Page 56]
but sustains the same relevant to infer arbitrary Punishment & the same to the knowledge of any Assize" – consequently as Leasing making was then before 1703 punishable with Death it must have been some Third Crime contained in the Lybel or its Qualifications which was remitted to the knowledge of an Assize & this could be no other than [indecipherable] or Insurrection or Rebellion which I take to be the same with what may be one species of [indecipherable]: And if so it follows that in the [indecipherable] & Judgement of the Court inconformity to the [indecipherable] on the relevance There was a Common [indecipherable] Crime punishable by the Arbitrary Punishment which could be no other than sedition My father who you I dare say have heard, was a very Able & Accute Lawyer has so construed it in his Abridgement He had great Practice in the Commons Court & abridged all the Cases from the [indecipherable] 1744 that he was made a [indecipherable] these cases he
[Page 57]
He [indecipherable] a Note of the Cases from 1554 till 1665 in which I may possibly find some materials –
On a Case Tryal to define Sedition to be that Crime which consels in the resisting or attempting to resist in undermine subvert or overturn the supreme Power of the State. That according to its object it aught as either Private or Publick & other of these might be attended with tumult & insurrection or without them
It was of a Publick Nature if it had in view to resist the supreme Power by overturning or undermining or attempting to overturn or undermine the Constitution of the Country or the Authority of any of such constituent Parl thereof
Of a Private Nature If the Execution be made as to an object of Private Property or what was more properly matter of Private Right – as overturning [indecipherable] opposing deviations of Commonlys or pulling down Turnpikes or inciting or attempting so to do
[Page 58]
I added that what was of a Publick nature might be committed in as many different ways as the Judges only of Vice or sacrifice of Wickedness could suggest by [indecipherable] speaking by [indecipherable] Allegorys by [indecipherable] False insinuations arguments suggestion or [indecipherable] if the object of these be to overturn the Constitution And This be made out to the satisfaction of a Jury – by Tumults Clubs Cabals Conspiracy & conventions under the same Qualification & the essence of the Crime or Guilt did not depend on the success of the Criminal, If it should appear to a jury, that he did what in him lay the Guise he opined to bring about the Lawless or wicked effect – Something of this may apply to this Case and it is with that Apology I offer it Give me leave farther to observe – That this lybel consists of a Number of Criminal facts or in other words Crimes & it dont signify
[Page 59]
whether they have a Technical Name or not Tho evidently they fall under the above definition of Sedition And Tho The 7th of Queen Anne [indecipherable] 21 has declared But nothing shall be by high Treason in Scotland but what is so in England – That does not hinder a Thing that might have been High Treason before, to remain a Crime in Scotland punishable at Common Law & by Arbitrary Punishment – My Definition of Sedition may be so general as even to comprehend high Treason as a species [indecipherable] it does not then follow that every species is High Treason to which the Statute relates – I know there is what is called Petit Treason in England something like what I call sedition but We have nothing to do with Petit Treason as established or punishable by the Statute or Common Law of England – The Laws
[Page 60]
of England as to that are not extended 7th Annee to Scotland – We may keep our own Law define our own Crimes & Names of Crimes & punish them as we do many other Arbitrarly
I had a letter from Lord Mansfield this Day desiring Information about Muir I have laid it before Lord Justice [indecipherable] President – Do you think it would be improper, in the mean time, to give Lord Mansfield more time to prepare, to lay the materials you have before him. I have the honour to remain with the greatest respect
My Dear Sir
Your most obedient & most humble servant
Alex Murray
The Right Honble)
Henry Dundas)
Secy of State)
P.S You will find the History of Thomsons Tryal in Arnots Collection of Criminal Cases published Ann. 1785 page 91 – He was wrong headed & mistakes the Principal of [indecipherable] – but if the Decision be of any use has [indecipherable] Parl gives Information
[Page 61]
Edinburgh 4 March 1794
Sir
In consequence of yours of 18 ult. I send inclosed a Memorandum respecting the mode of appointing Jurys – having received yours when on the Justiciary Court, I desired Mr Norris to send me a Note of the practice which he just now has done and I also hand it inclosed – You will see it agrees in general with what had occurred to me on the subject – only in my Memorandum I have Gone a little further into the detail of procedure
I Recorded, that when Sherving was apprehended several Letters from Palmer to him and Muir had been found which were produced in Shervings Trial, and yet lie in the Justitiary office – I have from thence taken copys of them, which I beg to leave to hand to you
[Page 62]
inclosed – as they show the Man – and his ways – as also, that the names of Mr Adam and Sheridon were familiar to him
The packing of Jurys was also you will see, early made a handle of now rejected I suppose, as having been done in his case – But all that arises from Ignorance of form, as the inclosed memdm. Explain – and to shew the absurdity of it in his case I have to bring under your recolection, that the Jurys for the Circuit must by law and were reported on 22d July - when it is believed the seditious paper of Palmers was not known - He was not apprehended till beginning of August of his declaration is dated 2 or 3d Aug I think and the recognition against him was not compleated till the middle of that month
[Page 63]
after which only a resolution was taken to by him so that in fact, the Jury that he says was packed for him, had been returned and [indecipherable] is common course before his papers were seen and many weeks before there had been any resolution formed to try him – The Trying him at the Circuit arose from the Circumstance, that an Immediate Tryal and in that part of the Country too, where the offence was committed, was better for announcing the End of Police, then deferring the Tryal till November or December, to be brought on before the Court at Edenbr.
Lord Advocate who set out last night, desired copys of Muir and Palmer Trials to be sent to you which accordingly have been done – I Got at first only a short copy of Palmer which tho not full is laid before as I understood – I have since Got a full copy
[Page 64]
of that trial as published by himself – it also is sent
In consequence also of Mr Kings to Lord Advocate received yesterday full Extracts of both trials are sent him
I have the honor to be
Sir
Your most faithfull
and Obed Sert.
Hugh Warrender
Edinb. 4March 179
Mr Warrender
Muir & Palmer
2 Enclosures
The Rt Honl.
A. Dundas etc. etc.
[Page 65]
The mode of appointing Juries in Scotland, is in this manner:
High Court of Justiciary at Edinburgh .
The Juries who serve in the Court are taken from the City of Edinburgh and the three Counties of Edinburgh, Haddington, and Linlithgow.
The Constables of the City of Edinb. as the proper Officers under the Magistrates yearly make up a List of between three and four hundred of the most respectable Citizens and most proper to serve upon Juries, This List is transmitted under the direction of the Magistrates to the Court of Justiciary – From this general List , a List of forty five persons is taken and signed by a quorum of the Lords of Justiciary for Each trial, a copy this List so signed is served upon the person prosecuted alongst with the Libel and List of Witnesses. – Upon the day of trial the Judges name from the List of forty five 15 persons to pass upon the prisoners Assize, and he is called upon, when
they
[Page 66]
they are sworn, to say if he has any objection to any of them.
The Sheriffs of the three Counties above mentioned report Lists likewise to the Courts of Justiciary, but these Lists contain only Gentlemen of landed property, and when a landed man comes to be tried, he is intitled to have one half of his Jury landed men. When such case occurs the landed Gentlemen to the number of one half of the 45 or thereby are taken from the Sheriffs List, the other half from the List of Citizens of Edin: and signed by a Quorum of the Judges as above.
The three Circuit Courts.
Twice in the year, on a certain day viz 22d: Feby and 22d: July, Each Sherriff or Stewart in Scotland except the three Counties of Edinburgh, Haddington and Linlithgow abovementioned, reports from his County to the High Court of Justiciary a List
of
[Page 67]
of 45 persons partly landed and partly Burghers, and prevous to the Judges fixing their Circuits.
The Circuit Courts in Scotland sit twice each year at nine different Stations or Circuit towns, each Station having a certain number of Counties within its district.
From the general Lists reported by the Sheriffs, the Judges at fixing the Circuits make up a List of 45 persons to serve at each Circuit Town, upon the whole cases or Trials that may there occur, in other words for the district of that Station. From this List of 45 persons the Judges at each Circt: select 15 persons, to pass upon each trial, that occurs. In short the Lists of Assize over all Scotland are reported by the Sheriffs and Magistrates of Edin., to the Judges of Justiciary, and a selection from these Lists is made by the Judges, for discharging the duty of Jurymen as the criminal Business from time to time requires.
[Page 68]
Memorandum respecting
Mode of Appointing Jurys
from Clerk of Justiciary
In Mr Warrenders 4 March 1794
[Page 69]
Edinburgh Jurys
A List is made up annually by the Constables of the different districts or divisions in Edinburgh, of the Inhabitants in their respective districts fit to serve as Jurymen – and soon after Whitsunday 15th May yearly, a List of such persons signed or certified by the chief Constable, or [indecipherable] of the whole Constables, is transmitted to the Office of Justiciary.
For the first trial that may occur after receipt of such List, the first 45 in it are marked off by the Clerk of Court, and the List of them signed by a Quorum of the Judges, as the Jury to be served upon the accused alongst with the Indictment and List of Witnesses.
The Prosecutor never sees the List of the Jury till it is given to him by the Clerk of Court so signed by the Judges, that he may serve it upon
the
[Page 70]
the prisoner or person accused.
To the next trial that comes before the Court, whatever it may be the next 45 in the general List of Jurors is marked off and in this way, the whole List is regularly gone through, and if exhausted by the number of trials in the course of the year, it is again begun to, and used till a new List is reported at the succeeding Whitsunday.
The same List is annually reported by the Constables to the Court of Exchequer, and from that List all the Jurys for trial in that Court are also taken.
Special Jurys. Besides the List so annually lodged by the Constables of Jurors within the City, - there is also lodged by the Sheriffs of Edinburgh, Haddington, and Linlithgow, (that is, the three Lothians) a List of the landed Gentlemen of these Counties proper to serve on Jurys; - But from this List no Jurors are taken, unless where a special
Jury,
[Page 71]
Jury is requisite – that is – where the person to be tried is possest of landed property, in which case, he is Entitled to have a trial by Jury of his Equals, and therefor, there may be 25 or 30 taken from any of these County Lists to make up part of the 45 to be served upon him.
When the trial proceeds, the Judge presiding at it calls out five from the List of 45, and enquires at the pannel if he has any Objection to them, - if any, he states it, and if relevant other Jurors will be called – if he has no Objection, these 5 are set down to be of the Jury, and other 5 are called in the same way, till 15 are chosen which is the number of a Scotch Jury.
And in the case of a special Jury, the majority of them is always composed of Gentlemen possest of landed property.
[Page 72]
Jury at the Circuits
Circuit Courts are held in Scotland as in England, twice a year in Spring and Autumn. – there are the West, South and North Circuits – two Judges go upon each Circuit which sits at three places, to each place several Countys are annexed, By this means every County in Scotland (except the three Lothians which are annexed to Edinb and subject only to the High Court of Justiciary held there) is represented twice a year at the Circuits.
By the Act 8th: of Queen Anne, Cap 14 the Sheriffs of each County as well as the Magistrates in it, and Justices of Peace are directed twice in the year in February and July to transmitt Presentments or Reports of all crimes that have been committed that seem proper for trial, along with the Recognitions that have been taken, - that they may be considered, - and if the Cases seem to afford sufficient Evidence, Indictments are of course raised upon them, and returned to the Sheriffs of the
[Page 73]
respective districts in due time before the Meeting of the Circuit, to be served upon the accused.
Alongst with the Presentments, - or whether there by any Presentments or not, the Sheriff of every County in Scotland (except the Lothians) does upon the day named by the Act of Queen Anne [indecipherable] and 22 July transmitt a List of 15 persons in his County for Jurors at the next Circuit. – In transmitting this List it is believed every Sheriff follows the same mode that is followed at Edinburgh, - that is, - he has a List of all those in the County proper for Jurors, and goes regularly through this List, transmitting the names of 45 from it in regular succession, half yearly
When the Judges meet at Edin: to fix the time of their Circuits, which is done twice a year by an Act of Adjournal (or regular Sederunt entered upon record) the different Lists of Jurors so transmitted by the Sheriffs are produced to them, and the
Judges
[Page 74]
Judges fixed for the respective Circuit districts mark off so many from Each List, as to make 45 in all – for summoning of which to meet at the Circuit, a precept or write is issued to each Sheriff of the district to cite such of them as reside in his Jurisdiction, to attend at the Circuit.
Suppose for example the Jury was to be fixed for the Circuit to be held at Perth. –
The Circuit Court held at Perth comprehends that County – Fife – and Forfar - By the Sheriff of Each of these Counties a List of 45 had been transmitted – therefor from Each of these Lists, the senior Judge that is to make that Circuit, marks off 15, which are commonly the first in the List, as these are generally supposed to be those whose turn it is to act as Jurymen, - and a Write is sent to Each of the respective Sheriffs of these Shires to all there 15 to attend the Circuit at Perth.
In that manner, 45 in all are
cited
[Page 75]
cited to attend at the Circuit town X
[in the margin] X whereof a rateable proportion from Each County in the District
and from these 45 all the Jurys for the whole trials that may come on at that Town are chosen – of course, if there is much business, Each of these 45 may have to be on more than one trial. For example, if there were six trials in the course of the sitting of the Circuit, Each of the Jury would be upon two of these trials, as 15 Jurors are requisite for one trial, so by three trials the List would be exhausted.
When the Judges meet at Edinburgh to fix the time of their Circuits, and issue the Writes for the Jurors selected from Each General List, they have no opportunity of knowing what trials are to come before them.
These depend on the public prosecutor, who in general at the time the Circuits are fixed, and the Jurors ordered to be cited, has not had the
opportunity of considering almost one of the Cases, that had been recently transmitted for his consideration. – and the Publick Prosecuter knows nothing as to who had been either reported, or nominated Jurors
[Page 76]
Memorandum
respecting
The Mode of Appointing
Jurys in Scotland
Mr AV. Warrenders 4 March 1794
[Page 77]
Mr Palmer to Mr Shirving
I hear with animation, of your determined courage and resolution, and trust that I shall imbibe some portion of it.
My Jury seem to me to be called for the purpose of condemning me. Tell me what you know of the political complexion of the following – Fife Shire
The Honble Robert Lindsay of Luchars
Col John Thomson of Charleton
James Calderwood Durham of Largo.
James Lumsdain of Innergelly
Alexander Duncan of Caillefeld
Patrick Lindsay of Coats
Andrew Johnston [indecipherable] of Pennyhill
Alex Cunningham of Pellarthie
Alex Wood Merchant in Elie
James Chalmers Merchant there
John Fair Writer in Colinsburgh
Andrew Whyte Writer in Crail
Cathart Dempster Mercht St Andrews
Robert Hey Mercht there
Alex Bonthron of Eelensgrove
These
[Page 78]
These are the last 15, all chosen at the arbitrary will of the Sheriff, of whom I have no peremptory challenge. The Star Chamber could not make more sure of its Victim than this method of administring the most important part of the Constitution.
Put in my Letter a little before eight that it may stand the less chance of being opened.
I am with esteem and affection
Yours TF. Palmer
Dundee Aug. 28th
1793
/ Addressed Mr Shirving opposite Old Assembly Close Cowgate Edinb.
Mr Palmer to Mr. Muir
My much esteemed and honoured friend.
I have always been afraid compressing my sentiments of admiration and love to worthy characters lest I should be thought capable of the common baseness of servility and flattery. Permit me to say however that your example has had no small influence upon me, and
con
[Page 79]
contributed to give me the courage and equanimity I now feel. I have only one drawback that gives me pain, that in that I should have been the cause of the like evils to that excellent man Mr. Shirving.
Our friends Mr Moffat and Lord Daer advised my employing Counsel as a mean of advancing the spread of the Cause, It has cost me more than £ 30 already, & I am now convinced that had I followed your advice and employed none, it would have been infinitely better. They are all Traitors.
I am told, that the flaws in my Indictment are irresistible, when Justice can be had.
Two people are with me, and I must conclude with one hint.
If the late news and more of the same kind should overturn Ministry, endeavour not only to get not only the reversal of our Sentence, but an Act for the restriction or abolition of arbitrary
punishment
[Page 80]
punishment, in which it should be expressly said, that you and I by name are restored to all the rights and priviledges we had before the prosecution took place, Without these, you lose your profession and some part of character with the multitude and I a £ 100 a year.
Nothing but the express mention of my Fellowship of Queens Coll: Cambridge being continued to me, can I fear secure the enjoyment of it.
You know the danger of keeping Letters, and of course will burn this.
God bless you
Yours truly
T. F Palmer.
Perth Septr 16th 1793.
/Addressed/ Thomas Muir Esq Edinr.
Mr Palmer supposed to Mr Shirving.
Dear Sir,
The Extracts or quotations from the Newspapers are not numerous, they consisted of some of the boldest things said by
Members
[Page 81]
Members in Parliament, and circulated in Newspapers and by that means as libellous in the eye of Law as the hand Bill. – I send you the Herald with Mr Fox’s speech on the 1st of Feby with the part marked. – The next was Mr Taylors speech on Barracks, as it is in the morning Chronicle of Feby 23 or 24, it was spoken on the 22d and only some very prominent parts were made use of, such as that we are gone altogether from liberty & Mr Moffat took away the papers marked for the Counsel immediately, to cast their Eyes upon. The other was the most remarkable parts of Mr Whartons speech.
You will mind, that no paper gives the parts alluded to of Mr. Taylors speech but the morning Chronicle. All these you will see with the dates in my defence. I believe Lord Wycombes speech was quoted, you will see it in my defence with a pen marked through it.
If my defence is to be published
I
[Page 82]
I ought to have it soon to correct, it can be printed without waiting for the other, but should it make the trial to bulky and expensive, I would not have it done.
I do beseech you, unless you wish to send me to Botany Bay, never advertise again that it is printed for my behoof.
I have not yet seen the trial advertised in the Star or Chronicle. Keep account of all the postages and expences I put you to.
It should be entered in Stationers Hall.
You can apply to Clerke Advocate, to know what Extracts he made use of, and I will write to Haggarty to send you word what he used. But I am so locked up, and so difficult of access, that much time is lost in my operations.
I send Woodfalls Diarys, which Lord Daer desired to have back again
I
[Page 83]
I wanted to be removed to Edinr, to have the happiness of Mr Muirs Company, or to Dundee, to have the little comforts I could procure there, but the Lords refused the request, saying it was in the trust of the Lord Advocate, I have just now got a Letter from the Sheriff, telling me from the Lord Advocate he has no such power:
As I am hopes, this will come safe, I must hint to you what is in agitation among many people to second Mr Adams intended motion, by petitioning against the power of arbitrary punishment and the mode of packing Juries in Cases between the Crown and people. But this must be after my trial, and Muirs have circulated in England; and after we have well written concerning it in the morning Chronicle.
My Eyes are weak, which makes confinement more dreadful. The friends
however
[Page 84]
however are amazingly kind; every night from 6 to 8, I am visited by a deputation of them. They furnish me also with the morning Chronicle.
Mr Muir should write on the method of packing Juries in cases between the Crown and people in Scotland for the morning Chronicle, and on arbitrary punishment.
I wish you could get the London Bookseller to present the Editor of the morning Chronicle, and the Editor of the Courier, and the Editors of the monthly and Analytical Reviews with a copy each, On second thoughts I will write to Mansom to do it.
I beg with my grateful remembrance for past services, that you will present Mr Moffat with One dozen Copies, begging of him to require the people to whom he gives them, not to lend them lest it should hurt the Sale.
I
[Page 85]
I should think that some might be sent to Belfast.
Pray ask Mr Moffat whether he received a Letter from me inclosing Davidsons unconsionable Bill. I wish to have his Opinion upon it.
Yours truly
T.F. Palmer
Sept 26th 1793
Mr Palmer to Mr. Skirving
Dear Sir,
I write this to you, chiefly because I forgot to take notice of the additional number you propose printing. You shall not be a loser:
Tell Mr. Moffat, I have at last received his Letter, it was sent by mistake to Beith, and that with great satisfaction I leave the whole of the business to you and him. I sent an addition to the Defence to be printed, calculated for England, which also I submitt to your
Judgments
[Page 86]
Judgements. I know not who the troublesome people are, who have been so officious, I am sure they had no authority from me.
One of the Chiefs of our English Courts of law pronounces my Sentence to be against all law, right, and reason, and impossible to be executed. What then must he say of that of my worthy fellow Sufferer, to whom I beg my affectionate regard.
The distress of the Manufacturers here is still augmenting, Petitions against the War I hear will meet Parliament from innumerable places.
But it would be scandalous to let these excessive punishments so contrary to the Bill of Rights, and the loss of a trial by Jury pass without petition or remonstrance; not to mention too, that we are not on equal footing with Englishmen, since if every form
every
[Page 87]
every safeguard of law be violated we are without appeal or redress. – Muir and I can never petition with so good a grace as when preceded by these.
Sherridan has quarrelled with the Prince, and taken a more decided part than ever. He is sure, that Pitt will be hanged in a year, unless he is previously pulled to pieces by an enraged people.
Yours truly
TF Palmer
October 8th 1793
Addressed Mr. Skirving opposite Old Assembly Close Cowgate Edinr.
[Page 88]
Copy
Letters from the Revd. Mr. Fyshe Palmer
To Messsrs Skirving and Muir
The Originals found in Skirvings possession when apprehended in Decemr 1793
were produced at trial of Skirving and are lying in Justitiary Office.
[indecipherable] Mr Warrenders 4th March 1974
[Page 89]
Letter from the Revd. Fyshe Palmer to Dr. Disney.
Sydney, N.S. WALES, JUNE 13, 1795
MY DEAR SIR, WHEN Mr White, the principal Surgeon of this Settlement, sailed last December in the Dadalus, I entrusted him with what is dearer to me than life, - my character. I was under the necessity of defending this against the infernal machinations of ---------------, master of the ------------------- transport, who had hired and suborned some of the outcasts who failed with him, to swear away my life by the accusation of mutiny, and the intended murder of him, and his principal officers. Of this murderous attempt of -------------------I sent the most indubitable evidence of many depositions made before a magistrate. In the hurry, Mr. Ellis sent the attested copies, as well as the originals, so that my character depends on the safe arrival and honesty of Mr. White. They were accompanied with the dismal narrative of my sufferings (of which last I have a copy) and entrusted to the care of Mr. ----------------------------. I am extremely anxious for the fate of them. My history since then is little else than a register of vexations and persecutions.
The officers have monopolized all the trade of the colony. They suffer no one but themselves to board any ship that may arrive. They alone buy the cargo, and sell it at 1,2,3, 400, and even 1000 per cent. profit. Mr. Ellis and Boston were ordered into confinement for entering a ship and endeavouring to purchase things, not prohibited for their use. With great respect, but firmness, they remonstrated against this invasion of the common rights of British subjects. This was construed into an audacious attack upon the privileges and interests of the military monopolists. And from that time (now many months ago) they have set their faces against them and me. They have had no grants and no servants. Mr. Boston, tho’ sent out by government principally to cure fish and make salt, has been the whole time unemployed. My men, which I bought at a monstrous rate, with a farm, have been taken from me. A message has been sent me to pull off my hat to the officers, or I should be confined in the cells and punished. Public orders have been twice given for no soldier to speak to me under the penalty of 100 lashes. Now I never had omitted to the ceremony of capping the officers, and never conversed with the soldiers. The most impudent claims on my property from the most unprincipled thieves were listened to, and enforced, without deigning to hear a single word I had to say.
The situation the colony is in at present is dreadful. It is put on half allowance, and even at this rate there is not enough in the stores to last three weeks. They have begun to kill the live flock. The cows are condemned, but all the flock in the colony will not last a month. The only resource is about three months provisions of Indian corn, a food inadequate to labour. In this state Mr Boston wrote to the commanding officer that he was sent out by government on purpose to make salt and cure fish, and that he would undertake, with the assistance of boats and men, to supply from Lord Howe’s Island, in the neighbourhood, a full or even a double allowance of well cured fish, at a third of the price of beef and pork. Can you conceive that little or notice was taken of this, and nearly a flat denial given?
Yesterday a large ship came in from India, the Endeavour, Bampton, with the company’s colours flying. These were called American, by the others the colours of Britain, - of a frigate sent to fetch us over. Good heavens! What were my sensations! mocked with groundless joy to be plunged again into melancholy. She brings live stock, arrack, tea, sugar, muslin, buffalo-fat, but only fourtern barrels of provisions. Fowls fell at 5s. each; cabbages 6d. pork 1s 6d per pound. I have never accepted any provisions of any kind from the stores, that no pretence might be made to demand my labour, and find living enormously dear. Mr. Muir, myself, Mr. and Mrs. Boston and Ellis live together, and are all well.
It gave me great pleasure on landing to see the harmony between the natives and whites. This was owing to the indefatigable pains of governor Phillips, to cultivate a good understanding with them. When himself was speared he would suffer no vengeance to be taken, and on no account an injury to be done them by a white man. The natives of the Hawkesbury (the richest land possibly in the world, producing 30 and 40 bushels of wheat per acre) lived on wild yams on the banks. Cultivation has rooted out these, and poverty compelled them to steal Indian corn to support nature. The unfeeling settlers resented this by unparalleled severities. The blacks in return speared two or three whites, but tired out, they came unarmed, and sued for peace. This, government thought proper to deny them, and last week sent sixty soldiers to kill and destroy all they could meet with, and drive them utterly from the Hawkesbury. They seized a native boy who lived with a fettler, and made him discover where his parents and relations concealed themselves. They came upon them unarmed, and unexpected, killed five, and wounded many more. The dead they hang on gibbets, in terrorem. The war may be universal on the part of the blacks, whole improvement and civilization will be a long time deferred. The people killed were unfortunately the most friendly of the blacks, and one of them more than once saved the life of a white man.
Governor Hunter, whose arrival is so anxiously expected, will come out with just and liberal ideas, I trust, of policy and correct the many abuses and oppressions we groan under, as well as those of the poor natives. It seems a strange time to drive these poor wretches into famine, the almost certain consequence of driving them from the situation, when we are so near it ourselves.
Ever since I landed I have been attacked by the malady of the country, fore-eyes; so that I have been obliged to give up writing and reading. I have now blisters behind my ears, from which I find some relief. Some lose their sight, but, in general, after the first attack, their vision is as good as ever.
You may be sure I am all anxiety concerning the fate of those men, who are suffering for the welfare of others. Remember me to them, if you have opportunity, with all the sympathy they deserve; and to ............... those friends endeared by distance, who are pleased to interest themselves about me.
I am dear Sir
Your much obliged and affectionate
[Page 90]
Sloane Street
June 3. 1796
Dear Sir,
Your last letter relieved me much, & I thank you for it accordingly. I am still a prisoner in my house & only yesterday came downstairs into my study: but my eyes are so weak that I cannot read, and nor write with much pain.
As some compensation for so short a note I send you on the other side a copy of a letter I recd on [indecipherable] 4th of last month from Mr Fyshe Palmer & of wch I had a few copies printed for some friends but desire you will not part with it, tho’ you may read it to whom you please. It must not get into public papers at any rate. A sad melancholy tale!!
I can say no more than thank you for all yr kind intentions towards me, and with my best compliments to Mrs Scholefield yourself I am Dear Sir
Yr very sincere obliged friend
John Disney.
[Page 91]
Revd. Radcliffe Scholfield
[indecipherable] Preistlys Exeter Row
Birmingham
single sheet
[Page 92]
Mr. MAURICE MARGAROT
At a Meeting of several Friends of CIVIL LIBERTY and PARLIAMENTARY REFORM, holden on Thursday, the 20th of October, 1814, the following Resolutions were entered into: -
l. That among the victims of Political Persecution, for honest and zealous exertions in a cause for which, in bad times, it is the fate and duty of Freemen to suffer, no man has borne so much with greater fortitude, and a more unshaken adherence to principle, than Mr. MAURICE MARGAROT.
II. THAT for his manly endeavours to obtain, the desideratum of the British Constitution, a Reform in the Representation of the People, first, as an active President of a distinguished Patriotic Society, and next, as a Delegate of that Society to the meeting of Friends of Parliamentary Reform, at Edinburgh, Mr. Margarot was, by a novel construction of an old Scotch law, transported for the term of FOURTEEN YEARS to New South Wales; during which period he suffered a series of CRUEL PRIVATIONS, enough to shake the firmest resolution; and, after an absence of nearly seventeen years, he has returned to his native country, broken in his health, ruined in his fortunes, and blasted in those hopes of competency which are necessary to sustain the decline of life – continuing, at the same time, an example to all Patriots in the integrity and consistency of his principles.
III. That such a man, as an Ornament of the great cause to which he has so disinterestedly devoted himself, merits the gratitude and support of all those who, in a venal age, have dared to continue to think for themselves, and to maintain the justness of those principles of public Liberty which were established by the blood of their forefathers, and bequeathed to them as an Inheritance, and as a Sacred Trust to be inviolably transmitted from generation to generation.
1V. That it appears therefore incumbent on the friends of Liberty, and generally on all the friends of that Constitution, which is valuable only in the degree in which it is truly and purely administered, to sustain, for the sake of his good example, the comforts and modest independency of Mr. MARGAROT, and that a Subscription ought to be set on foot, and actively promoted, until a sufficient
W. Lewis, Printer, St. John’s-square, London.
[Page 93]
sum shall have been raised to meet his immediate exigencies, and to purchase a moderate Annuity for his own life, and that of Mrs. Margarot, who with exemplary affection bore him company during his expatriation, shared his sufferings, soothed his afflictions, and sympathised in the cause in which he must be regarded an ever-to-be-respected Martyr.
V. That a Subscription be now opened, and that SAMUEL BROOKES, Esq. No. 110, Strand, be appointed Treasurer, to whom, or to MATTHEW WOOD, Esq. Falcon-square; JOHN CARTWRIGHT, Esq. No. 17, James-street, Pimlico; Mr. Alexander Galloway, No. 69, High Holborn; or Mr. THOMAS HARDY, No. 161, Fleet-street, all contributions are requested to be paid; and that in furtherance of the said Subscription, these Resolutions be circulated by post, and otherwise, among the known Friends of Freedom, in all parts of the United Kingdom, with the hope, that in their respective circles they will exert themselves in the performance of a duty, which in this case appears to be particularly incumbent on them.
[Transcribed by Robin Mathews for the State Library of New South Wales]