and according to the nature of the thing, was a was one of them,) exhausting Britain of momost scandalous, seditious and pernicious re- ney, carrying our countrymen abroad to be proach upon us, our government, and right killed in time of war, and ordering them to be thereto, tending to the engendering discord be- starved in time of peace; and after the examtween us and our people, and to occasion con- ple, as he says, of that abominable monster spiracy or sedition against us. Likeas it also Nero, who, beside his inhumanity to his pawas a most criminal reflection upon, and mis- rents, burnt with joy the city of Rome. And constructing of, the proceeding of us and our he further accuses the said king William of parliaments for settling the succession, con- prostituting the honour of the nation; and all trary to the very Oath of Abjuration that he the along he treats his government as a foreign said Mr. Dundas had taken, and clearly tend- yoke. But then he goes on to accuse and ing to move dislike between us and our subjects. slander us who now reigns, for continuing, conBut the said Mr. Dundas, not resting in this trary to law, as he alleges, king William's parhis wicked practice, hath, upon one or other of liament, though it was both warrantable, and the days of August last, further proceeded to approven by an express act of parliament; the making or publishing of a most scandalous, whence he proceeds to condemn the union of pernicious and seditious pamphlet, under the the two kingdoms as a fatal blow to our laws, title of The Faculty of Advocates Loyalty, in and the finishing subversion of our constitu' a Letter to us by one of the Dean of Facul- tion, in laying an embargo upon our trade, dity's Council.' Which pamphlet, and most vesting the Peers of their hereditary right, diinfamous libel, is a heap of lies, villanies and minishing the parliamentary representation of mischief; whereof his written copy, with the the Commons, and surrendering the whole printed copy printed by his order, and so pub. power and sovereignty of Scotland into the lished, is put in the clerk of court his hands, hands of a more powerful people, our old enethat he may see it; and a double also of the mies of England; and not stopping in his resame, held as here repeated, and given out to flecting upon and reproaching the Union, he him to answer: as, first, and in the first para goes on to reflect upon the proceedings of us graph thereof, where, abusing a very tender and the British parliament, by abrogating part and sacred principle and position of govern- of our laws, though infinitely better, as he says, ment, as to Non-Resistance, he stretches the than those of the English, and introducing the same most wickedly and maliciously to the English laws about treason, in place of ours, condemning of the late happy Revolution; and which he also falsely makes a breach of an arthen proceeding, he villanously reflects upon ticle in the treaty. And then, taking notice of the very first happy times of our reformation the appeals that lie from the lords of council from Popery, directly accusing both our noble and session to the British parliament, he roundregents and worthy reformers, and also the ly reproaches the whole House of Peers, as men English, then our friendly assistants, of rebel-who can scarce be presumed to know either lion and tyranny against the then queen Mary; law or equity; adding further another false inadding, that after her decease we submitted to sinuation, as if our representatives were, conthe next in blood; but then be plainly asserts, trary to the treaty of Union, ranked after all against our right and title, and the succession the counties and boroughs of England. Nor to the crown, as now settled by act of parlia- doth the kingdom of Ireland escape his unacment, that relation, kindred, and the rights of countable malice and reproach, when he calls blood, are so sacred, that no crime, nor noit a receptacle of English slaves, and a conpower on earth, could take them away: thereafter he goes on with his malicious strictures upon the times of the late king Charles 1, and upon things long since happily buried by severat acts of indemnity, and that not without most rude reflections on the English as cowards: and where, in a word, he makes the whole English nation either professed Jacobites, that is, enemies to us, or such villains, as he calls them, as to profess only loyalty in shew, when they are at the bottom abomiuable hypocrites, false friends, and traitors. Then he goes on to reflect again upon the late happy Revolution, which he reckons no better than a curse, and the late king William, of ever-glorious memory, no better than a Nebuchadnezzar; and that to him we were all made slaves; and thence he takes a new flight against the late king William's memory, whom he falsely accuses of alienating the bishop's rents to profane uses, of giving us ignorant and villainous judges, (though Mr. Dundas his own father, a person of probity and merit beyond exception,

quered province, unjustly preferred to Scotland. And further wickedly adds, to the manifest engendering of discord, and moving of dislike, that all overtures for the good of Scotland were refused. After all which he most absurdly concludes for the loyalty of the advocates, though they had received a medal of the Pretender, from no better arguments than his own pernicious and wicked reflections above remarked. By all which it is manifest, that the said Mr. James Dundas is guilty, art and part, of most seditious and pernicious practices; as also of a most wicked, villanous, seditious and pernicious pamphlet, and defamatory libel, contrary to the foresaid laws and acts of parliament. Which being found by a verdict of an assize, before our lords justice general, justice clerk, and commissioners of justiciary, he ought to be, by their sentence, severely punished with the pains of law, to the example and terror of others to do the like in time coming."

Sir James Stewart, her majesty's Advocate,

produced an order, signed by lord Dartmouth, one of the secretaries of state, to prosecute.

Pleaded for the pannel, The prosecutor can only insist upon one of the libels, and the other two must be dropped; for the pannel cannot be obliged to answer to three libels upon the same fact at once, as that might produce three sentences against him, l. 1, s. 3, ff. De Accusat. ; J. 11, s. 2, eodem. The list of the assize is only given out with the first libel; and therefore if it be passed from, there can be no trial. If the other two are passed from, the additional list of witnesses given out with them must go for nothing. 2ndly, The libel holds the pamphlet as repeated, or a part of the libel; it ought therefore to have been given out with the summons and citation; for no part of a criminal libel can be left in the clerk's hands more than another.

composing a pamphlet, without publication, is no crime, more than the speaking in private where nobody hears. Writing, without publishing, can never occasion sedition. The act 131, parl. 8, Ja. 6, relates to open public speaking; the act 10, parl. 10, Ja. 6, to slanderous writings; by which such must be understood as occasion a misunderstanding between the king and his subjects. The act 1662 means the same, and has been only so understood. 2dly, Publication is not charged in the libel; all that it alleges is, that one copy was printed by the pannel's order: but printing one copy could never, in the eye of law, be publication; for the printing a single copy could never occasion disgust or discord between prince and people. The act 21 Rob. 1, and the act 1662, distinguish between printing and publishing. What is printed must therefore be dispersed, in order to conAs to the first branch of the libel, which stitute publication; but that is not alleged in charges seditious practices, the facts charged the libel; I. 1, ff. De edendo; 1. un. C. de faare not relevant; because, first, by no law is mosis libellis; 1. 5, s. 11, ff. ibid. All that is lithe receiving such a medal forbidden; conse- belled is the giving orders to print; but that is quently the argument for receiving it could not not publishing: and as what was printed never be a crime. As to the pretence, that the medal was de facto published, there was at most no asserts the prince of Wales's right to the crown, more than a conatus, which is not punishable; there is nothing on the medal which directly 1. 1, ff. Quod quisque juris; l. 10, par. 5; 1. asserts that right; so that even the corner of 5, par. 10, De famosis libellis; 1. 38, s. 2, De the medal could not be the ground of action: pœnis. So that the libel is not only founded and it is without precedent to punish for a pre- upon old obsolete laws, but they are stretched tended meaning when nothing is expressed. beyond measure. 3dly, The pannel offers to 2ndly, Supposing the medal asserted the Pre- prove, in exculpation, that his orders were litender's right, no law prohibits the keeping mited not to print, without a licence from the such medal, any more than the keeping or provost of Edinburgh; which shows he had no using a book that maintained that or any other design to raise sedition. 4thly, The pamphlet bad principle. The 134th act, Ja. 6, condemns may be understood in a good sense, as containBuchanan's Chronicle; yet those people who ing a view of the tenets of those who without kept it in their possession never were punished. any just reason carp at the present administraIn France, the having British coin, which as- tion, and a ridicule of such people. It is very serts our sovereign's having right to that king- common, in an ironical manner, to commend dom, was never reckoned punishable. 3dly, As certain articles and principles which are meant to the assertion, That the Pretender had the to be exposed; and we have satires written right of blood, or words to that purpose, in the against marriage, which were designed to refirst place, this is too general, and in crimina- commend it. The proposition laid down in this libus non licet vagari.' 2ndly, The using pamphlet, That our prince is absolute, must be such expression is not pleading against her ma-ironical; as it is plain from our history and jesty's right to the crown; for her majesty's acts of parliament, that he is not; and that the right is not incompatible with another's having supreme legislative power is lodged in the king what may be called the right of blood; for blood and parliament. alone gives no right to the crown; it gives a title, if the person that has it be not debarred by the want of other qualities, which our laws require. Thus many are nearer by blood to the succession than the House of Hanover; yet it is called before them, and they are excluded, because of their want of other qualities. Hence the saying, that the Pretender had the right of blood, was only saying, he was a near relation to the queen: but it did not import a denial of her majesty's just right to the crown; and therefore the argument for receiving the medal upon that ground, cannot be criminal, though the argument might be inconclusive.

As to the second branch of the libel, founded on the pamphlet: in the first place, the mere

* As to this, see vol. 12, p. 164.

Answered. To the first, The three libels are all precisely in the same words, and -are used for the purpose of giving citations on the discovery of more witnesses or new documents: but the conclusion is one. To the second, The pamphlet is referred to as a proof of the crime charged. To the third, The mere receiving a medal may not be criminal; but the pleading for receiving it in the manner libelled, shows a design to reflect on her majesty's right, especially as it was objected to on account of its being a medal of the Pretender. The argument for receiving it on that account, and because he had the right of blood, which was good, was plainly to impugn her majesty's right, as two rights to one crown are incompatible: and this was more than barely asserting the Pretender's

John Wood saw lord Fraser and others go to the cross, saw his lordship on the cross, heard a *This family was raised to the peerage by servant belonging to the company cry three seCharles 1, A. D. 1633. The title became ex-veral O Yes's, and then proclaim the late king tinct by the prisoner's dying without issue; Douglass's Peerage, page 275.

448. The Trial of RICHARD NOBLE, Gent. for the Murder of JOHN SAYER, Esq. and of Mrs. MARY SAYER, for Petty Treason, and Mrs. MARY SALISBURY, for aiding and abetting the said Murder; at the Assizes held at Kingston-uponThames, in Surry, before the Right Hon. the Lord Chief Justice Parker: 12 ANNE, A. D. 1713.

they had not been married long, before she quarrelled with him, and parted beds; then by "We had no success in our story, though I intercession of friends came together, and sent my man to several houses, to inquire among parted again. In short, she carried on a crithe footmen, without letting him into the secret; minal conversation with two or three others, but I doubt my colleagues did not contribute before she came acquainted with Mr. Noble. as they ought." Swift's Journal to Stella, April-Though Mrs. Sayer will appear so vicious 1, 1713.