Abstract
In this paper I examine the history of the crime of sedition and its use in Scotland between the 1790s and 1840s. The history of the law of sedition in Scotland in this period is significant because the crime was in practical terms created in the trials of the 1790s. These high profile cases meant that there was more overt discussion of the definition and function of the crime than in many other jurisdictions. I relate this development to a broader set of questions about how the scope and nature of class of crimes against the state or political crimes changed over this period, and how this is itself related to the emergence of new spaces and forms of politics, and also a pulling apart of word and deed in the conception of crime. The questions I address concern the changing conceptions of the relationship between thought, conduct and responsibility, and second how the idea of the state or the political was conceptualised in the criminal law as the object of this type of crime.
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Notes
- 1.
State Trials, XXIII: 1–6. Cockburn, Examination, I: introduction.
- 2.
John McLean was famously tried for sedition in 1918; G.H. Gordon, The Criminal Law of Scotland, 2nd edn (Edinburgh, 1980), 909 notes that there was also an unreported prosecution for sedition in 1921 (Guy Aldred). See http://obliqueintent.blogspot.co.uk/2011/10/on-guy-aldred.html. The Criminal Justice and Licensing (S.) Act 2010 s.51, abolished the crimes of sedition and leasing-making.
- 3.
See generally Michael Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c.1770–1820”, Oxford Journal of Legal Studies, 10 (1990), 307–52; M. Head, Crimes Against the State (Aldershot, 2010); Keith Smith, “Securing the State, the Institutions of Government and Maintaining Public Order”, in W. Cornish et al. (eds), The Oxford History of the Laws of England. Vol. XIII, 1820–1914, (Oxford, 2010), 334–51.
- 4.
All the Scottish sedition trials for this period can be found in State Trials, XXIII.
- 5.
State Trials, XXIII: 1–6. See also, for example, Elder & Stewart (10 Jan. 1793), State Trials, XXIII: 25–34. Those who did not appear for trial were outlawed, but it appears that only limited efforts were made to bring them to trial. This is consistent with the practice in England described in C. Emsley, “An aspect of Pitt’s ‘Terror’: Prosecutions for Sedition during the 1790s”, Social History 6 (1981), 155–84.
- 6.
See Morton, Anderson & Craig (8, 9 & 11 Jan. 1793), State Trials, XXIII: 7–26, who were sentenced to nine months imprisonment for toasting the downfall of the monarch and inciting unrest amongst soldiers in Edinburgh Castle; Callender, Berry & Robertson (Jan.–Mar. 1793), State Trials, XXIII: 79–116, sentenced to 3 and 6 months imprisonment for printing, publishing and selling seditious literature.
- 7.
State Trials, XXIII: 117.
- 8.
John Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England (London, 1849), xiv–xv claims that the jury were “thunderstruck” by the severity of the sentence, with Muir’s guilt so trivial as to merit only a few weeks imprisonment. See Michael T. Davis, “Prosecution and Radical Discourse during the 1790s: The case of the Scottish Sedition Trials”, International Journal of the Sociology of Law 33 (2005), 148–58. See also W. D. L., “A Trial for Sedition”, Journal of Jurisprudence 35 (1891), 638.
- 9.
See also Alexander Scott (Feb. 1794), State Trials, XXIII: 383–92 (outlawed for non-appearance).
- 10.
State Trials, XXIII: 545 (Robert Dundas, Lord Advocate). See Henry W. Meikle, Scotland and the French Revolution (Glasgow, 1912), 143–4.
- 11.
See John Barrell, Imagining the King’s Death. Figurative Treason, Fantasies of Regicide, 1793–6 (Oxford, 2000).
- 12.
State Trials, XXV: 1. See Barrell, Imagining, ch. 9.
- 13.
See generally Emsley, “Trials for Sedition in the 1790s”.
- 14.
E.P. Thompson, The Making of the English Working Class (Harmondsworth, 1968), 13. See generally Meikle, Scotland and the French Revolution; Nigel Leask, “Thomas Muir and The Telegraph: Radical Cosmopolitanism in 1790s Scotland”, History Workshop Journal, 63 (2007), 48.
- 15.
32 Geo.III c.60 which placed the decision of whether or not something was seditious in the hands of the jury. For discussion see Michael Lobban, “Treason, Sedition and the Radical Movement in the Age of the French Revolution”, Liverpool Law Review 22 (2000), 205–34.
- 16.
It was notable that the Treasonable and Seditious Practices Act 1795 (36 Geo.III c.7) increased the maximum sentence for sedition in England to seven years transportation. See also Seditious Meetings Act 1795 (36 Geo.III c.8).
- 17.
C. Kennedy, “Declaring Crimes”, Oxford Journal of Legal Studies, 37 (2017), 741–69; L. Farmer, Criminal Law, Tradition and Legal Order. Crime and the ‘Genius’ of Scots Law, 1747 to the Present (Cambridge, 1997), ch. 2. On the controversy over the sentences see Cockburn, Examination, II: 133–49 and infra.
- 18.
See, for example, State Trials, XXIII: 183 declaring that he was “tainted from head to foot and is as unworthy to live under the protection of law as the meanest felon”.
- 19.
Cockburn, Examination, vol. 1, 87. For a more measured view see Michael Fry, “MacQueen Robert, Lord Braxfield 1722–1799”, ODNB. Note that trial of Watt and Downie for high treason in 1794 was held before a special commission of oyer and terminer, because of reservations about Braxfield’s conduct. See Meikle, French Revolution, 151.
- 20.
See David Hume, Commentaries on the Law of Scotland respecting Crimes, 4th edn, 2 vols (Edinburgh, 1844), II: ch. 11. The procedure varied slightly for Edinburgh where forty-five names would be submitted from each of the Lothians, and the clerk of court would reduce these to forty-five who would be required to appear. See Cockburn, Examination, I: 80–3. On the situation in England see Smith, Securing the State and Jeremy Bentham, The Elements of the Art of Packing, as Applied to Special Juries (London, 1821).
- 21.
State Trials, XXIII: 133–4.
- 22.
See generally Meikle, French Revolution, 186–93, though he is sceptical about the spread or the influence of the United Scotsmen.
- 23.
State Trials, XXVI: 1135–64. Unlawful administering of oaths had been criminalised by 37 Geo.III c.123 (1797), and was punishable by up to seven years’ transportation. An Act of 1799 (39 Geo.III c.79) outlawed these societies by name as unlawful combinations against the government.
- 24.
State Trials, XXVI: 1179–90. Black was outlawed for non-appearance. For Maxwell see Cockburn, Examination, II: 165.
- 25.
Cockburn, Examination, II: 168.
- 26.
See Gordon Pentland, Spirit of the Union: Popular Politics in Scotland, 1815–1820 (London, 2011), 39–48.
- 27.
State Trials, XXXIII: 1–144.
- 28.
State Trials, XXXIII: 633–80; Cockburn, Examination, II: 204.
- 29.
The trial was not reported, so I rely here on the account in Cockburn, Examination, II: 207.
- 30.
60 Geo.III & 1 Wm.IV c.8. Cockburn states that it was this trial which prompted him to undertake his work on sedition. See Examination, II: 219.
- 31.
6 Geo.IV c.47 i.e. fine or imprisonment only on first conviction. The power of banishing from Scotland was finally removed by 7 Wm.IV & 1 Vict. c.5 (1837). See Archibald Alison, Principles of the Criminal Law of Scotland (Edinburgh, 1832), 588–9.
- 32.
The cases are reported in Cockburn, Examination, II: 226–44.
- 33.
W. Hamish Fraser, Chartism in Scotland (Pontypool, 2010), ch. 9.
- 34.
There were five deaths and sixty-four arrests. The ringleaders were tried in May 1848, presumably for mobbing and rioting, and received harsh sentences of between ten and eighteen years’ transportation, see Fraser, Chartism, 155.
- 35.
Fraser, Chartism, 165.
- 36.
Emsley, Trials for Sedition in the 1790s, 175.
- 37.
See also Atle L. Wold, “Was there a Law of Sedition in Scotland? Baron David Hume’s Analysis of the Scottish Sedition Trials of 1794”, in Gordon Pentland & Michael T. Davis (eds), Liberty, Property and Popular Politics: England and Scotland, 1688–1815. Essays in Honour of H.T. Dickinson (Edinburgh, 2016).
- 38.
David Hume, Commentaries on the Law of Scotland respecting Crimes, 1st edn, 2 vols (Edinburgh, 1797–1800).
- 39.
On Hume see L. Farmer, “Scots Criminal Law”, in M. Mulhern, A Compendium of Scottish Ethnology (East Linton, 2012).
- 40.
Henry Cockburn, Untitled review of Supplement to Hume’s Commentaries by B. J. Bell 1844, Edinburgh Review, 168 (1846), 196–223. See also James Crawfurd, “Scottish Criminal Law. Review of Bell’s Supplement to Hume’s Commentaries”, North British Review, 4 (1846), 313.
- 41.
On Hume and national identity see Farmer, Criminal Law, Tradition and Legal Order, ch. 2.
- 42.
George Mackenzie, On the Laws and Customs of Scotland concerning matters criminal, 2nd edn (Edinburgh, 1696), 34. Mackenzie drew heavily on Roman law, in which seditio referred to a kind of insurrection.
- 43.
Hume, Commentaries, 4th edn, vol. 1, 553. It is interesting to note that there is no substantial change in the text between the 1st and 4th editions, though Hume revised other parts of the text.
- 44.
Ibid.
- 45.
Hume, Commentaries, 4th edn, I: 554.
- 46.
John Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (Edinburgh, 1811), 239.
- 47.
Ibid.
- 48.
Alison, Principles, 580–1. He also follows Hobbes in stressing its potential to lead to civil war. On Alison generally see Michael Michie, An Enlightenment Tory in Victorian Scotland (Edinburgh, 1997).
- 49.
See Principles, 583–8 where he defends the imposition of severe penalties against Muir, and the general principle that prosecuting sedition at common law was the correct approach in allowing punishment to be adjusted to the circumstances.
- 50.
Principles, 583.
- 51.
See for example Burnett, Criminal Law, 242–3 discussing the metaphor of the apothecary selling poison.
- 52.
This was believed to have important procedural consequences, discussed in the case of Skirving. Cockburn was of the view that if the facts alleged revealed treason then this had to be charged, Examination, vol. 1, 226–33, and that this therefore should have been the charge in the British Convention cases. This was also the view taken by John Scott (later Lord Eldon) for the Crown in England, leading him to charge treason against Hardy, Tooke, Thelwall and others, where seditious libel might have been easier to establish. See F. K. Prochaska, “English State Trials in the 1790s: A Case Study”, Journal of British Studies, 13 (1973), 66–7.
- 53.
Hume, Commentaries, 4th edn, I: 553.
- 54.
Burnett, Criminal Law, 249–50. See also Hume, Commentaries, 4th edn, I: 559.
- 55.
Hume, Commentaries, 4th edn, I: 558.
- 56.
Justiciary Cases (1848) J. Shaw 17.
- 57.
At p. 80. See also pp. 85–7 where he is explicitly critical of Hume’s definition.
- 58.
See Lobban, “Seditious Libel”, 349.
- 59.
In Alison’s words, it would depend on the mode of bringing forward the measure, the means proposed to be adopted, and the temper of the times: Principles, 588. See English cases on audience: Vincent (1839) 9 C. & P. 91, 110; Collins (1839) 9 Car. & P. 456, 460.
- 60.
John Erskine, An Institute of the Law of Scotland (Edinburgh, 1773) Title IV of Crimes para.29.
- 61.
Alison, Principles, 581–2.
- 62.
Ibid.
- 63.
Hume, Commentaries, 4th edn, I: 559.
- 64.
Burnett, Criminal Law, 240 followed Hume’s interpretation.
- 65.
Discussed in Hume, Commentaries, 4th edn, I: 555.
- 66.
For example Mealmaker (1798) and Black & Paterson (1798), State Trials, XXVI: 1135–64, 1179–90.
- 67.
State Trials, XXIII: 777–802. Discussed in Burnett, Criminal Law, 249–55.
- 68.
This point also relied on the somewhat tenuous argument that transportation was a punishment at common law, analogous to banishment.
- 69.
Hume, Commentaries, 4th edn, I: 554.
- 70.
See also Alison, Principles, 583.
- 71.
Hume, Commentaries, 4th edn, I: 558.
- 72.
Ibid.
- 73.
Justiciary Cases (1848) J Shaw 51.
- 74.
State Trials, XXIII: 103. Their argument was based on the opinion of Lord Mansfield in Woodfall, 1770 Barrow, vol. 5, 2661. See also trial of Thomas Muir (1793), State Trials, XXIII: 207–14, in which he tried to make the same argument about Paine’s Rights of Man.
- 75.
(1848) J Shaw 51 at p. 61.
- 76.
Ibid. at pp. 62ff.
- 77.
This argument thereby obviating the need for a distinction between real and verbal sedition. Compare the English case law on the same point from R v Burdett (1820) 106 ER 873; 1 St Tr (New Series) 1 (objective fault) to Burns (1886) 16 Cox 355 requiring an intention to cause disorder.
- 78.
p. 81. Cf. the dissenting opinion of Lord Cockburn pp. 111–21.
- 79.
Cockburn, Examination, II: 172.
- 80.
Cockburn died in 1853, but did not want to publish the Examination in his lifetime for fear of offending the surviving relatives of some of the judges who he criticised.
- 81.
Examination, I: 73.
- 82.
Leon Radzinowicz, History of the English Criminal Law and Its Administration, 5 vols (London, 1948–1986), IV: 5. Michael T. Davis, “‘Good for the Public Example’: Daniel Isaac Eaton, Prosecution, Punishment and Recognition, 1793–1812”, in Radicalism and Revolution in Great Britain, 1775–1848, ed. Michael T. Davis (New York, 1999).
- 83.
Lobban, “Seditious Libel”.
- 84.
Smith, “Securing the State”, 341.
- 85.
It is interesting to note that Burnett, Criminal Law, 261 suggests that resistance, including inflammatory libels or secret societies, is permissible but only in times of “real oppression” – though he does not define what this is.
- 86.
See, for example, the notorious summing up by Lord Braxfield in the case of Thomas Muir, State Trials, XXIII: 231.
- 87.
See for example Cockburn, Examination, I: 6.
- 88.
Cockburn, Examination, I: 1.
- 89.
Ibid., 7–8.
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Farmer, L. (2019). “Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849. In: Davis, M., Macleod, E., Pentland, G. (eds) Political Trials in an Age of Revolutions. Palgrave Histories of Policing, Punishment and Justice. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-98959-4_2
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