God and a man's own conscience, it cannot come under the cognizance of a jury; but certainly it may: and though God alone is the absolute judge of a man's religious profession and of his conscience, yet there are some marks even of sincerity among which there is none more certain than consistency. Surely a man's sincerity may be judged of by overt acts. It is a just and excellent maxim which will hold good in this as in all other cases, by their fruits ye shall know them.' Do they, I do not say go to meeting now and then, but do they frequent the meeting-house? Do they join generally and statedly in divine worship with dissenting congregations; whether they do or not may be ascertained by their neighbours, and by those who frequent the same places of worship. In case a man hath occasionally conformed for the sake of places of trust and profit, in that case I imagine a jury would not hesitate in their verdict. If a man then alleges he is a dissenter, and claims the protection and the advantages of the toleration-act, a jury may form some judgment of his pretensions, enough to enable them to try and determine the question, whether he falls within the description of that act, so far as to render his disability a lawful one.

"The defendant in the present case, my lords, pleads that he is a dissenter within the description of the tolera tion-act, that he hath not taken the sacrament in the church of England within one year preceding the time of his supposed election, nor ever in his whole life, and that he cannot in conscience do it. Conscience, my lords, is not controllable by human laws, nor amenable to human tribunals; persecution or attempts to force conscience will never produce conviction, and are only calculated to make hypocrites or martyrs.

"My lords, there never was a single instance from the

Saxon times down to our times in which a man was ever punished for erroneous opinions, concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for opinions; only for atheism, blasphemy, and reviling the Christian religion; and there have been instances of persons being punished for these upon the common law; but non-conformity, my lords, is no sin by the common law, and all positive laws inflicting any pains or penalties for non-conformity to the established rites and modes, are repealed by the act of toleration, and dissenters are thereby exempted from all ecclesiastical censures. My lords, what blood and confusion have been occasioned from the reign of Henry the Fourth, when the first penal statutes were enacted down to the revolution in these kingdoms, by laws made to force conscience. There is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic than persecution my lords, it is against natural religion, revealed religion, and sound policy.

"As to the great impolicy of it, any man who peruses the admirable things which the president De Thou, though a papist, hath advanced (and which I never read without rapture) in the dedication of his history to Henry the Fourth of France, will meet with the fullest conviction. I am only sorry, my lords, that his countrymen, the French, have so far profitted by the sentiments he hath there delivered, as now to see their error. I profess I am one of those who should not have broke my heart, (I hope I shall not be thought uncharitable in saying it) if they had banished the Hugonots and kept the Jesuits; in a political view, I had much rather they had retained the Jesuits

and banished the Hugonots. And, my lords, to ruin the Hugonots, a more jesuitical advice could not have been given than what hath been followed in the present case; make a law to render them incapable of office, make another law for not serving. If they accept, punish them(for it is admitted on all hands that the defendant in the cause before your lordships is prosecutable for taking the office upon him); if they accept, punish them; if they refuse, punish them; if they say yes, punish them; if they say no, punish them. My lords, this is a most exquisite dilemma from which there is no escaping, it is a trap a man cannot get out of, it is as bad a persecution as that of Procrustes-if they are too short, stretch them; if they are too long, lop them: and, my lords, this bye-law, by which the dissenters are to be reduced to this wretched dilemma, is a bye-law of the city, a local corporation, contrary to an act of parliament, which is the law of the land; a modern bye-law, of very modern date, made long since the corporation-act, long since the toleration-act, in the face of them and in direct opposition to them, for they knew these laws were in being. It was made in some year of the reign of the late king-I forget which; but, my lords, it was made about the time of building the mansion-house. Now, my lords, if it could be supposed the city have a power of making such a bye-law, it would entirely subvert the toleration-act, the design of which was to exempt the dissenters from all penalties. For by such a bye-law they have it in their power to make every dissenter pay a fine of six hundred pounds, or any sum they please; for it amounts to that.

"The professed design of making this bye-law, was to get fit and able persons to serve the office; and the plaintiff sets forth in his declaration, that if the dissenters are excluded, they shall want fit and able persons to

serve the office. But, my lords, were I to deliver my own suspicion, it would be, that they did not so much wish for their services as their fines.

"My lords, dissenters have been appointed to this office; one who was blind, another who was bedridden, not I suppose on account of their being fit and able to serve the office; no, they were disabled both by nature and by law. My lords, we had a case lately in the courts below, of a person chosen mayor of a corporation while he was beyond the seas with his majesty's troops in America, and they knew him to be so. Did they want him to serve the office? No; it was impossible but they had a mind to continue the former mayor a year longer, and to have a pretence for setting aside him who was now chosen on all future occasions as having been elected before; and, my lords, in the cause before your lordships, the defendant was by law incapable at the time of his election, and it is my firm opinion that he was chosen because he was incapable. If he had been capable he had not been chosen, for they did not want him to serve the office; they chose him because without a breach of the law, and a usurpation upon the crown, he could not serve the office. They chose him that he might fall under the penalty of their bye-law, made to serve a particular purpose, in opposition to which, and to avoid the fine thereby imposed, he hath pleaded a legal disability grounded on two acts of parliament. And as I am of opinion that his plea is good, I conclude with moving your lordships, that the judgment be affirmed.'"

SPEECH

SPEECH of ARCHIBALD CAMPBELL, Esq. in defence of ROBERT WILSON, of Edinburgh, charged with the Murder of JANET his wife, on the night of the 27th of January, 1803; tried before the Court of Justiciary, Edinburgh, 28th of February, 1803.

1

"I completely concur with my learned brother, that the crime of murder, charged against the panel, is one of the deepest dye; and severe as the punishment is, which the law annexes to it, it is not beyond what such a crime deserves. Murder is a crime at which human nature revolts with horror: but if there has been murder in the present case, and the panel has perpetrated that crime against his wife, he has committed a crime of the greatest atrocity, and is sunk to the utmost depravity of soul. They had journeyed through life till they had nearly reached its termination, and had another world in view. The declining state of her health had rendered her an object of compassion, and made it his duty to watch over her with tenderness and care. He had made her the partner of his gains, she partook of his comforts, he had become her benefactor, a character which is productive of all the offices of kindness. If, therefore, he was guilty of her murder, it was indeed most atrocious; but in proportion as the crime appears more heinous, it requires, of course, the clearer proof. Where a common crime is committed, it may strengthen the presumption, but where it is of uncommon turpitude, it requires to be distinctly proved indeed. The evidence that has been adduced is altogether circumstantial. I admit that circumstantial proof will go a great length, but it must be strengthened by some additional facts before it is conclusive

VOL. III.