STATE TRIALS, &c. &c. 603. Trial of DAVID DOWNIE for High Treason; at a Special Commission of Oyer and Terminer, holden at Edinburgh September 5th and 6th: 34 GEORGE III. A. D. 1794.† Edinburgh Friday, September 5th, 1794. Present,-Lord President, Lord Chief Baron of the Exchequer, Lord Eşkgrove, Mr. Baron Norton, Lord Swinton, Lord Dunsinnan. Counsel for the Crown, The Lord Advocate, Mr. Solicitor General, Mr. Anstruther, Mr. Dundas. Agent.-Mr. Warrender. Counsel for the Prisoner.-Mr. Cullen, Mr. Clerk of Arraigns.-You, the prisoner at the bar, these good men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon the trial of your life and death; if, therefore, you will challenge them, your time is to · speak unto them as they come to the book to be sworn. The Jury were then called as follows: Alexander Wallace,-Pris. I challenge him. * See the case of Robert Watt in the preceding Volume p. 1167. + Taken in Short-hand by Mr. Blanchard. Of this case another, but imperfect, account was published similar to that of Watt's trial, which has already been noticed, anté, Vol. 23. p. 1167. VOL. XXIV. John Scougall,-Pris. I challenge him. John Horner,-Pris. I challenge him. Tho. Hutchinson,-Pris. I challenge him, Archibald Campbell,-Pris. I challenge him. George Kinnear,-Pris. I challenge him. 2. William Fraser (of Kirkbraehead in the parish of St. Cuthbert's, of the county of Edin burgh) was sworn. John Andrew,-Pris. I challenge him. William Lamb,-Pris. I challenge him. 3. William Fettes (of Princes-street, in the city of Edinburgh) was sworn. William Scot,-Pris. I challenge him. James Rannie,--Pris. I: hallenge him. James Jameson, Pris. I challenge him. 4. James Lindsay (of Quality-street, Leith, wine Merchant) was sworn. Alexander Sheriff,-Pris. I challenge him. Alexander Kinnear,-Pris. I challenge him. 5. James Hamilton (of Princes-street, in the city of Edinburgh, upholsterer) was sworn. 6. Alexander Ponton (of Canal-street in the city of Edinburgh, wright) was sworn. David Deuchar (of High-street, in the city of Edinburgh, seal-engraver) was sworn. 8. Charles Robinson, (of Princes-street, in the city of Edinburgh, painter) was sworn. 9. George Rae (of Leith-wynd, in the parish of Canongate, candle maker) was sworn. 10. John Bonnar (of St. David-street, in the city of Edinburgh, painter) was sworn. 11. David Milne (of Queen-street, in the city of Edinburgh, merchant) was sworn. Fran. Buc. Sydeserff,-Pris. I challenge him. James Price,-Pris. I challenge him. 12, John Black (of Turk's Close, in the city of Edinburgh, woollen-draper) was sworn. LIST OF THE JURY. Robert Young. David Deuchar. John Bonnar Clerk of Arraigns. Count these. [He] tion. : Cryer.-Oyez. If any one can inform my lords, the king's attorney general, or this inquest now to be taken, of the high treason, whereof the prisoner at the bar stands indicted, let them come forth, and they shall be heard; for now the prisoner stands at the bar upon his deliverance, and all others that are bound by recognizance to give evidence against the prisoner at the bar, let them come forth and give their evidence, or else they forfeit their recognizance; and all jurymen that have been called, and have appeared, and are not sworn, may depart the court. Clerk of Arraigns.-David Downie, hold up your hand (which he did). Clerk of Arraigns to the Jury.-Gentlemen, you that are sworn, look upon the prisoner, and hearken to his charge; he stands indicted by the name of David Downie, late of Edinburgh, in the county of Edinburgh, not having the fear of God in his heart, nor weighing the duty of his allegiance, but being moved as a false traitor against our lord the king, and wholly withdrawing the cordial love and true and due obedience, fidelity, and allegiance, which every true and faithful subject should, and of right ought to bear, towards our lord the king, and wickedly, maliciously, and traiterously, contriving to break and disturb the peace, and to change, subvert and overthrow the government happily established in this kingdom, and to excite, move, and raise insurrection, and rebellion, and to depose our lord the king from the government of Great Britain, and to put him to death, on the first day of March last, and on divers other days.The first overt act is, that he, on the first of March, did maliciously, wickedly, and traiterously meet, conspire, consult, and agree to cause and procure a meeting of divers subjects, to be assembled and held within the kingdom of Great Britain, under the name of a convention, for the purpose of assuming to themselves, at such meeting, the powers of government and legislation, over this kingdom, independent, and in defiance of the authority, and against the whole of the parliament of this kingdom, and of subverting and altering the rule and government, and deposing our lord the king from the government and royal state. The second overt act is, that he met, and consulted to instigate, incite, encourage, and persuade the subjects of our lord the king, to cause and procure divers meetings and assemblies, for the purpose of choosing delegates from among themselves, to meet in a meeting under the name of a convention, to be held for the purpose of assuming to themselves the power of government, and legislation, and of deposing the king. The third overt act is, that he met and as Trial of David Downie [4 sembled to choose a convention to be held, the object of which was, to redress national power of government and legislation of this grievances, by usurping to themselves the parliament. kingdom, in defiance of the authority of about, in such convention, to be held without The fourth overt act is, consulting to bring the consent of parliament, an alteration and change in the mode of representation, and instigating and inciting persons to send delegates to such convention, for the same purpose. other false traitors, by force to oblige the king The fifth overt act is, that he conspired, with to alter the measures of government, and to comply with certain unlawful demands, promade by him, relating to the king's adminispositions, and measures, to be thereafter tration of the government of this kingdom. raise, and make insurrection and rebellion, The sixth overt act is, that he conspired to against our lord the king. to oblige the king by force to comply with The seventh overt act is, that he conspired certain demands to be made by him, and conmeasures respecting the government of this sent to the introduction of regulations and kingdom. consulted, and agreed with other false traitors, The eighth overt act is, that he conspired, to seize and take the castle of Edinburgh into his possession, by force of arms, with guns, pikes, spears, battle-axes, and other offensive pointed and instructed by him, and to lay in weapons, and to provide leaders to be apwait, and surprise the forces of our lord the king, stationed in the said Castle of Edinburgh, and to attack and fight them, and to take into his possession by force, the public banks, and excise office, and to seize and imprison the justice clerk, the lords of council and session, and justiciary, and the lord provost of Edinburgh. and incite divers subjects of our lord the king and consulted with other false traitors, to pro- to raise and levy money, the better to carry printed, published, and dispersed certain ma- and to pay the same to him, with intent that | The thirteenth overtact is, that he hired and vernment. The fourteenth overt act is, that he instructed the said John Fairley, to instigate, and incite the subjects of our said lord the king, to give assurance and support, and to remit such money as should be collected to him. The fifteenth overt act is, that he employed the said John Fairley, to instigate and incite the subjects of our said lord the king, to procure arms, and to arm themselves, to resist the king, and to aid and assist him in subverting the government. The sixteenth overt act is, that he employed William Brown, to make and procure arnis, for arming himself and other false traitors, and paid them money for the same. The seventeenth overt act is, that he employed Robert Orrock to make arms for the same purpose. The eighteenth overt act is, that he contrived, and got into his possession arms, and kept them concealed in his dwelling house, in readiness to be made use of, for the traiterous purposes aforesaid, against the duty of his allegiance, against the form of the statute in such case made and provided, against the peace of our said lord the king, his crown and dignity. Upon this indictment he hath been arraigned, and thereunto hath pleaded Not Guilty, and for his trial hath put himself upon God and the country, which country you are; your charge is, to inquire whether he be guilty of this high treason, whereof he stands indicted, or not guilty; if you find him guilty you are to inquire what goods and chattels lands and tenements, he had at the time of the high treason committed, or at any time since; if you find him not guilty, you are to inquire if he fled for it; if you find that he fled for it, you are to inquire of his goods and chattels, as if you had found him guilty; if you find him not guilty, and that he did not fly for it, you are to say so, and no more; and hearken to the evidence. Mr. Dundas.-Gentlemen of the Jury, This is an indictment of high treason, against David Downie, the prisoner at the bar. You have heard the indictment read, and it is my duty to state the substance of it. Briefly, then, it is this,—The prisoner is charged with conspiring to assemble a convention, which was to usurp the government, and to new A. D. 1794. model, at their will, the constitution of the [6 country. He is likewise charged with procuring offensive weapons, to arm the subjects of the country, in order to alter the form of the conduct of the king, and compel him to comgovernment, and to overawe, and restrain the ply with such measures as, to the prisoner and his associates, might seem proper, and expedient; and, finally, he is charged with having conveyed treasonable papers, with a view of influencing the army, corrupting the soldiers, and biassing them from their duty, and of exciting them to rebellion. language of the law, extend to compass and of all is, he has taken measures which, in the imagine the death of the king,-to which he has pleaded Not Guilty. The sum The Lord Advocate.-My Lords;-Gentlemen of the Jury,-This is an indictment of high treason; and it is my duty to state to against the prisoner at the bar, for the crime you, shortly, the law, as it appears to me to stand, upon that subject, and the general nature and import of those facts, which on the part of the crown, and on that of the public, by evidence; of the truth or sufficiency of it is my duty to lay before you, and to support which evidence, you, as the representatives of the country, judging impartially, between the subjects on the other, are alone entitled, and prosecutor on the one hand, and your fellow have the power to determine, Gentlemen, it must be perfectly well known union of the two kingdoms, the systems of to you, that, upon the happy event of the law which had prevailed in each country from the earliest history of both of them, were by that solemn treaty, settled and secured to each nation for ever. however, and upon the best grounds of public expediency, an alteration took place, in reSoon after, spect to the crime of high treason, which, parliament, been made the same for both since that period, has, by the authority of kingdoms. It was just that it should be so; for, being united under the same sovereign, and under the same happy form of govern. our allegiance was the same, the laws that ment, it was expedient and necessary, that as punished the breach of it should be equally so. whether we, in Scotland, gained, or may be Gentlemen, I shall not stop to inquire, supposed to have gained, or to have lost, by the introduction of the English law of treason; it is not material to the question you are now to try; but this I can state, without the hazard of contradiction upon the part of the prisoner, that the Scots laws of treason, previmuch more severe, than those which were ous to the union, were much more strict, and established in England, under the protection of which we now live; and that some persons, who are now suffering under the common Gerrald; whose cases see in the preceding law of Scotland, arbitrary punishments, for offences committed against it, would, if the Scots laws of treason had existed at the present moment, have been tried for their lives, under that law, and would have suffered the capital punishment which that law inflicted. I have no doubt you must also know, for it is a circumstance that has always been stated to the honour of the law of England, that from the days of king Edward 3rd to the present time, the law of treason has been governed by a statute, passed in the reign of that excellent prince; and that it remains the foundation of all the trials which have proceeded upon that subject. It includes three distinct cases; and the statute is conceived in that short, simple, and precise style, for which the parliaments of our forefathers, at an early period, both in England and in Scotland, were so distinguished and remarkable. They left that brief, short, and concise statute, to be applied by the judges of the land, in after-times, to every case which appeared to them to fall within it; they busied not themselves with hunting out every minute case, which fancy might suggest, but they laid down, in plain and clear language, that conduct, and those leading facts, by which allegiance, in their apprehension, was broken, and left to the judicial authority of the land to apply to subsequent cases, the distinct and plain rules by which the law of treason was settled and defined; and that statute, which has stood the test of centuries, and which has been discussed in every case that has since occurred, has now, and for a long time past in England, been fixed, explained, and settled, beyond the possibility of controversy, and beyond the reach of dispute; it has justified the wisdom of the parliament which enacted it, by the universal applause which this country has bestowed on it; and has received from all who have considered or written upon the subject, the strongest, and most just encomiums, as preserving, on the one hand, the constitution and government, and the safety of every member of that government, by punishment severe, if those under its protection are false enough to conspire for its downfall; and securing, at the same time, the liberty of the subject, and the safety of the highest as well as the meanest individual that lives under its protection, from the power of the crown, if ever attempted to be oppressively exerted, or stretched beyond the due limits of that authority with which the law and constitution has vested it for the security of the whole, and for the preservation of peace and of order. Gentlemen, I stated to you, there were three points which formed the leading and prominent features of that act of parliament. The first, in the order of the statute, and considered by the law as the most enormous in guilt, is-compassing or imagining the death of the king the second, levying war against the king: and the third, adhering to the enemies of the king. In this case, with the last we have nothing to do, The charge, which has been opened in general to you, by my brother, falls, as you must have observed, under the first and most important of the whole, compassing and imagining the death of the sovereign; and, in the course of the evidence I shall afterwards open, you will find, that, to a certain extent, the second branch of the statute comes likewise under your consideration, though it forms not the ground work of the charge against the prisoner at your bar; for, according to the universal and concurrent authority of the greatest and ablest judges and lawyers, which any country ever produced, men, friends to the liberties, the religion, and the constitution of their country, a conspiracy, or consultation to levy war, or insurrection, against the government and the sovereign, even though that war should not be actually levied, but by vigilance checked in the bud, has been, with the fullest consideration, held to be an overt act of compassing and imagining the death of the sovereign, and to fall under that leading and principle branch of the statute. Gentlemen, we have, since that law has been extended to us, had two rebellious in our country, but upon both those occasions, the persons guilty were, from peculiar circumstances, and under the authority of a special statute, tried in our sister kingdom. We have the misfortune, at the period we now live, to be almost the first, in the different situations of judges, jurymen, or prosecutors, called to the melancholy, but necessary exercise of the jurisdiction, according to the laws that prevail in our sister kingdom; and though the periods of rebellions, I trust, are past; although we all, for this century past, have had occasion to bless the constitution which our parents have established for us, which from them we have received, and which, I trust, we shall do our utmost to send down entire to our children, there exists, at the present moment, to the astonishment and grief of every virtuous, loyal, and welldisposed subject (from what source it originates I need not state), a conspiracy and combination, founded upon principles hostile, not only to our own, but to every other government, and subversive of all order, aided by men, who, detesting every form of government, have endeavoured to seduce the ignorant, the low, and the illiterate (who are incapable of considering those subjects), from their duty and allegiance; to excite the multitude to rebellion, and to rise in arms against that admirable constitution, in the possession of which every Briton exulted; and under the specious but false pretext of reform, to substitute instead of what we enjoy, something which these unhappy people themselves do not understand; an attempt which, if they had succeeded, would have produced the same dread ful consequences which have taken place in a neighbouring country; would have equally involved in it the life of our sovereign, and the existence of the legislature; would have subverted all laws, and annihilated all property, and, after destroying those persons employed in the service of the state, or members of its legislature, would have almost in the next immediate moment, descended on the heads of those most active and conspicuous in such a dreadful conspiracy. Gentlemen, the words of the act of parliament state the law with sufficient accuracy for you to understand its meaning; and after reading that statute, you will be able, without any comment of mine, which as a Scots lawyer I should hardly pretend to give you, upon an English statute, to see what the law of treason is, or by what circumstances of conduct it is violated. The law of England, indeed, as the law of every free country ought to be on this subject, is so plain that every man who reads may understand and know precisely the law which he dares to violate.-For your farther satisfaction, however, I shall feel it my duty, not in my own words, but in those of the most distinguished lawyers of England, to lay before you those observations on the statute, which appeared to them material, and to state the cases, in their apprehension, that fall under the one or the other of the two branches of the act of parliament. I shall begin with Mr. Justice Foster, of whose name you have most of you no doubt heard, and read from him and Hawkins, and Mr. Justice Blackstone, the most modern of them all, a few pages upon the subject. In that discourse which Mr. Justice Foster published soon after the rebellion 1746, upon the law of high treason, which, as from the eminence of his professional, as well as general character, and the particular circumstances of the times, he was called upon to consider with the most minute attention, so he possessed the ability of stating to his country, and posterity, what the law was on the subject, he, in his commentary upon the first branch of the statute, compassing the king's death, expresses himself in the following words: "I have said, that, in the case of the king, the statute of treasons hath, with great propriety, retained the rule, voluntas pro facto, (the will for the deed). The principle upon which this is founded is too obvious to need much enlargement-the king is considered as the head of the body politic, and the members of that body are considered as united and kept together, by a political union with him, and with each other,-His life cannot, in the ordinary course of things, be taken away by treasonable practices, without involving a whole nation in blood and confusion." I recollect, if I may be permitted to stop here, a quotation from a living author, I mean the present lord Auckland, who, in his " Principles of Penal Law," has unquestionably proved himself, by his writings, as great a friend to the liberty of the subject, as a decided enemy to any severe system of criminal jurisprudence; and who observes, that the circumstance of a sovereign being carried from his throne, and under the appearance of a mock trial, led to execution by his subjects, was (some few years ago) without a parallel. We live at an hour of this century, when his lordship's remark is no longer accurate, and when that circumstance is no longer peculiar to the history of Britain; when dreadful experience justifies the truth of Mr. Justice Foster's observation," That his life cannot be taken, in the ordinary course of things, without involving a whole nation in blood and confusion; consequently, every stroke levelled at his person, is, in the ordinary course of things, levelled at the public tranquillity; the law therefore tendereth the safety of the king, with an anxious, and, if I may use the expression, with a concern bordering upon jealousy it considereth the wicked imaginations of the heart, in the same degree of guilt as if carried into actual execution, from the moment measures appear to have been taken to render them effectual; and therefore, if conspirators meet, and consult how to kill the king, though they do not then fall upon any scheme for that purpose, this is an overt act of compassing his death, and so are all means made use of, be it advice, persuasion, or command, to incite or encourage others to commit the fact, or to join in the attempts; and every person who but assenteth to any overtures for that purpose, will be involved in the same guilt." "And if a person be once present at a consultation for such purpose, and conceal it, having had a previous notice of the design of the meeting, this is an evidence proper to be left to the jury, of such assent; though the party say, or do nothing, at such consultation. The law is the same, if he is present at more than one such consultation, and doth not dissent or make a discovery. But, in the case of once falling into the company of conspirators, if the party met them accidentally, or upon some indifferent occasion, bare concealment, without express assent, will be but misprision of treason. The law was formerly more strict in this respect; si ad tempus 'dissimulaverit vel subticuerit, quasi consen'tiens et assentiens, erit seductor domini regis manifestus.' He then goes on:-"The care the law hath taken for the personal safety of the king, is not confined to actions, or attempts of the more flagitious kind, to assassination, or poison, or other attempts, directly and inmediately aiming at his life; it is extended to every thing wilfully and deliberately done or attempted, whereby his life may be endangered; and, therefore, the entering into measures for deposing, or imprisoning him, or to get his person into the power of the conspirators,-these offences are overt acts of treason, |