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alter his measures or counsels, will be to compass or imagine the levying of war against his majesty for that purpose, within the just meaning of the modern Statute. Rebellion, at its first commencement, is rarely found in military discipline or array although a little success may soon enable it to assume them.
I have already intimated, that any act manifesting the criminal intention, and tending towards the accomplishment of the criminal object is, in the language of the law, an overt act. It will be obvious, that overt acts may be almost infinitely various; but in cases where the criminal object has not been accomplished, the overt, acts have frequently consisted of meetings, consultations, and conferences about the object proposed, and the means of its accomplishment; agreements and promises of mutual support and assistance; incitement to others to become parties to, and engage in the scheme; assent to proposed measures; or the preparation of weapons or other things deemed necessary to their fulfilment. All these, and other matters of the like nature, are competent overt acts of the particular kind of treason—of the particular compassing and imagination to which they may happen to apply.
In High Treason the law acknowledges no accessaries; all who, in any way, or at any time, become partakers in the project, are considered as principals. And in conspiracies of a treasonable nature, as well as in inferior conspiracies, it will be found almost universally to happen, that some persons are active in forwarding one part of the means of executing the design, others another part; some are more zealous and ardent, others more cool and reserved; some engage themselves in an earlier, others in a later, stage of the confederacy; but the act of each individual, in pursuance and prosecution of the general design, sidered as the act of all who become privy and consenting to the design, although it may have taken place out of their presence, or even before they had engaged in the design; because, by their subsequent engagement, they adopt all that may have been previously done toward the promotion of the general object, which they ultimately engage to accomplish; all, I mean, that strictly and properly relates to the forwarding and fulfilment of that object.
From what has been said, it will appear that the overt acts are most important matters in a judicial investigation of any alleged treason; and the law requires in favour of the accused, that the overt acts, by the proof whereof the accusation is to be supported, shall be set forth on the indictment, in order that he may have
notice of them, and be prepared for his defence. But it is not required that all the articles, circumstances, and matters to be given in evidence should be disclosed by the indictment; it is enough that the act, whether of meeting, consultation, incitement, consent, preparation, or other matter, be charged with convenient certainty, leaving the proof of the act to be made out by suitable testimony in this, as in other cases. It is further required by Statute, that there shall be two witnesses to prove the overt acts; not two to one and the same overt act; but either two to one and the same overt act; or one to one overt act, and another to another overt act, of the same species of treason.
I should add that some one overt act must be proved to have taken place in the county wherein the bill of indictment is preferred, which is, in the present instance, the county of Middlesex. If this be done, the proof of other overt acts in other counties is to be received as competent to sustain the indictment. And if several overt acts be charged, satisfactory proof of any one in the proper county is sufficient.
Having made these general observaa tions, it will be expected, that I should now advert in some manner to the particular case which is likely to become the subject of your inquiry. It is not my purpose, however, to enter into anydetail of circumstances upon this subject to the extent even of the limited knowledge that I now possess. Such detail is not necessary for your guidance, and might by possibility operate injuriously upon the persons accused. It is, however, proper for me to describe the substance and general outline of the matters of fact that are likely to be laid before you, in order that my observations upon the law, as applicable to these or the like matters, may be rendered intelligible.
It has been supposed (and for the present you will consider what I am about to say as supposition only), that a conspiracy was formed to assassinate the several persons chiefly intrusted by his · majesty with the administration of the affairs of his government, when they should be assembled at a dinner at the house of one of them on the 23rd of February last; and that other and more extensive measures of treasonable hostility against the existing government and constitution of this country were intended by the conspirators, to accompany and follow this intended assassination. It has further been supposed that, this design having by some means been discovered, several persons assembled for its almost immediate perpetration, were found together, in a stable or loft in an
obscure street, with arms and offensive contemplate and intend the probable and
connected with each other by blood or Upon the law as applicable to these other bond of private union, against any supposed matters of fact, I should tell considerable number of other persons you, that a conspiracy to murder a num alike unconnected by any private circumber of individuals, whether in a private or stances of association. It is still more public station, however high or important
difficult to conceive a case of merely the public station may happen to be, private revenge, limited and confined to grounded only upon private malice har. the intended assassination alone, where boured against them in the minds of the the intended victims happen to be a conspirators, and for the mere gratification number of persons conducting the adof private revenge, and not meant to be ministration of government, and not apaccompanied or followed by any other pearing to be known to the conspirators act or matter, or to bring about any object otherwise than by their public character of a public nature, however odious and offices and conduct. In such a case it is criminal such a conspiracy may be, does natural to suppose that the object in view not in law constitute the offence of high must be of a more public and extensive treason. But if the assassination be meant nature than the mere gratification of vinas the signal for or commencement of a dictive feelings. tumultuous insurrection of large num But the facility of one supposition, and bers of persons expected to join the the difficulty of the other, must not supconspirators, and with a view by force ply the place of proof; they only conduce and numbers to take the government to the reception of the proof that may be of the country into the hands of the lead offered, and to the credibility of evidence ers, or to compel the sovereign to adopt tending to the manifestation of ulterior such measures as they may think fit to dic designs. Such ulterior designs, if they tate to him, then the conspiracy to assas shall appear to be of the nature to which sinate will assume a different character, I have alluded, and to relate to the and become an overt act of those species usurpation of the government of this of treason, which consist in an intention nation, or of this metropolis alone, in to depose the King, or to levy war against opposition to the constituted authorities him for one of the purposes before men of the realm, even for a season, will appear tioned, and may also be an overt act to the calm eye of sober reason to be wild of treason in compassing his death ; be and hopeless : But you, gentlemen, know cause we know from experience, that the that rash and evil-minded men, brooding death of a sovereign has been the usual over their own bad designs, gradually lose consequence of his deposition; and every sight of the difficulties that attend the person may reasonably be presumed to accomplishment of their schemes, and
magnify the advantages to be derived from them. And as it is the natural character of vicious men to think others not less vicious than themselves, those who form wicked plans of a public nature easily believe that they shall have nume. rous supporters, if they can manifest at once their designs and their power by striking some one important blow. This belief leads, in some instances, to a rash and hasty communication of the wicked purpose to others, who are thought likely to adopt it and join in its execution, but who in fact are not prepared to do so, and thereby occasionally furnishes evidence against those, by whom the purpose has been engendered and communicated. Dark and deep designs are seldom fully developed, except to those who consent to become participators in them, and can therefore be seldom exposed and brought to light except by the testimony of accomplices. Such testimony is, as you well know, to be received on all occasions with great caution; it is to be carefully watched, deliberately weighed, and anxiously considered : it is competent in law to be received on all occasions; its credibility on each particular occasion depends on its own particular character, with reference to the matter to which it relates, and the confirmation it may receive from pure and uosuspected quarters, and on the probability of the facts related, rather than on the personal credit of the relator. He, who acknowledges himself to have become a party to a guilty purpose, does by that very acknowledgment depreciate his own personal character and credit. If, bowever, it should ever be laid down as a practical rule in the administration of justice, that the testimony of accomplices should be rejected as incredible, the most mischievous consequences must necessarily ensue; because it must not only happen that many heinous crimes and offences will pass unpunished, but great encouragement will be given to bad men, by withdrawing from their minds the fear of detection and punishment tbrough the instrumentality of their partners in guilt, and thereby universal confidence will be substituted for that distrust of each other, which naturally possesses men engaged in wicked purposes, and which operates as one of the most effectual restraints against the commission of those crimes, to which the concurrence of several persons is required. No such rule is laid down by the law of England or of any other country. The credit of such testimony is, by the law of this country submitted, in the first instance, to those who, like you, are called together to exercise the functions of a grand jury, and, if re
ceived in the first instance, is then subVOL. XXXIII.
jected to the further and more perfect scrutiny of that other jury, who are finally to pronounce upon the guilt or innocence of the accused, after having heard both him and his accusers.
The next subject of inquiry, mentioned in this commission, is the offence denominated Misprision of Treason, which by the common law, is said to be," when a person knows of a treason, though no party or consenter to it, yet conceals it, and doth not reveal it in convenient time."
In high treason, there are no accessaries, as in cases of felony; but all who in any way consent to become parties to the crime, are considered as principal traitors. High treason being an offence against the general safety of the state, it becomes every good and faithful subject, who may happen to have a knowledge of any traitorous design, to communicate such knowledge to some magistrate or other person in authority, in order that proper measures may be taken to prevent the accomplishment of the design.
The law, therefore, considers the wilful concealment of treason as an offence of very great magnitude, and has annexed to it very severe punishment; no less tha he rfeiture of the goods of the criminal, the loss of the profits of his lands during life, and imprisonment during life,
But in a case to be followed by consequences so highly penal, there must, in order to constitute the crime, be a knowledge not only of the tieason, but also of some at least of the traitors. He who has barely been informed of an intended insurrection, without any knowledge of the particular circumstances or persons, does not become a criminal by forbearing to communicate what he has so vaguely heard. And for the protection of persons accused of this crime, the statute requires that the treason, supposed to be concealed, shall be proved by two witnesses, both of them to one overt act, or one of them to one, and another of them to another act of the same treason, as is required in the case of those who are charged with the treason itself.
If any bill for this offence of misprision shall be presented to you, it may be presumed that the treason charged will be of the same kind, and arising out of the same matters as that upon which I have already addressed you.
You will understand, that it cannot be necessary to inquire into the knowledge or concealment, until you shall be first satisfied of the treason; and if you shall be satisfied of that, then I have no doubt you will conduct the further inquiry with all the care and caution that a matter so
highly penal requires at your hands. 2 Y
Concealment, as you well know, is pro yield, they do so at their own peril; and perly a negative fact; and therefore, if provided their arrest would be lawful, the treason and the knowledge of it be ihen he by whom a death-wound may be proved, and the knowledge shown to have inflicted, and all who unite with him in existed at such a time, and under such the resistance, become guilty of the crime circumstances, as afforded a reasonable of murder. opportunity for discovery, the proof of a An arrest, under the authority of the discovery lies properly upon the party warrant of a competent magistrate, for a charged, though on the one hand, there criminal matter specified in the warrant, may possibly be circumstances from which by any of the persons named therein, and a discovery may be inferred, and on the by any others whom they may take to other hand, there may be circumstances their aid, is a lawful arrest. So also is an manifesting an intention to conceal, and arrest by peace officers, without warrant, consequently excluding any presumption for felony, or other higher crime actually in your minds in favour of the accused, committed or reasonably alleged to them though not excluding the proof of a disco to have been committed by the persons very, before the jury by whom the party arrested. So likewise is an arrest by such may be tried, if he shall be able to offer officers of persons actually engaged in any it, when he makes his defence against the breach of the peace; or of persons ascharge.
sembled, and arming, and preparing themThe consideration of all such circum selves for the immediate perpetration of stances may, I am persuaded, gentlemen, murder, or other felony; because such be very safely entrusted to you, so far as assembling and preparation are in themyour duty extends, without further obser selves criminal acts, and the arrest of the vation on my part.
persons assembled may, in many cases, The third subject of inquiry, , is the be absolutely necessary for the prevention murder of Richard Smithers, or any other of the accomplishment of their still more crime or offence touching the death of that
criminal purpose. person,
I have mentioned these instances of This is the person who is supposed to arrest and resistance, because I apprehend have lost his life on the occasion of the the cases likely to be submitted to your attempt made to arrest some of those who consideration will fall within one or other are now in custody under a charge of of them. high treason. It will therefore be mate But, in order that no inference may be rial for you to direct your attention to the drawn from my silence on another topic, place, the time, and the circumstances it seems proper to add, that it must by ander which that attempt to arrest was no means be taken for granted, that per. made.
sons required to yield themselves to officers The caution required by the law of of the peace, even in case the officers be England in the conduct of officers and not duly authorized to arrest them, may ministers of justice proceeding to arrest instantly and before any actual assault on for criminal matters persons who may their persons, and withoat warning to the happen to be in a dwelling-house, whereof officers to withdraw or stand off, attack the doors are closed, is confined to a dwell with deadly weapons and slay the officers, ing-house alone. All other buildings, or without subjecting themselves to the crime places of meeting, may lawfully be opened of murder. A killing, under such cirand entered for the purpose of arresting cumstances, would undoubtedly be mancriminals, without any notification of the slaughter at the least; and as the circumpurpose previously made; and the persons stances appear to denote a wicked heart, who may be found within, deriving no a mind grievously depraved, and motives protection from the place where they are highly criminal (which is the general notion found, are bound to yield themselves upon of malice in our law), such a case, if ever the same demand or notification as if they it shall unfortunately happen, will require were met with in the field or open street; grave and serious consideration. and this need only be in the first instance In speaking of those who may become a general notification of the character and guilty of murder, by the slaying of an purpose of the officers, conveyed in any officer under the circamstances that I have words, or in any form or manner, that mentioned, you will bear in mind that I may be intelligible to those who hear or used the expression, “ all who unite in see them. If the persons thus required resistance with him who gave the death to submit desire further information as to blow." the authority to which they are called I used these words, because where upon to yield, it-behoves them to demand several persons are assembled for any it; for, if after such notification they resort purpose, be it lawful or unlawful, and to instant resistance, and to the use of something wholly unexpected and foreign deadly weapons, and happen to slay any to the general design happens to occur of those to whom they are required to on the sudden, upon which one or more
fly to arms, and death ensues, those who take no part in such new and unexpected occurrence are not to be involved in the guilt of their companions, as they may be in the case of an unlawful act committed in furtherance and prosecution of their general design.
If, therefore, an indictment against several persons for this alleged murder shall be submitted to your consideration, you will attend to the conduct of the different individuals - charged therewith throughout the whole course of the evidence that may be laid before you on such indictment; to their conduct before the meeting at that particular place; to the act and inanner of assembling in that place, and to their behaviour there, as well at the first appearance of the officers as afterwards, until the final arrest or escape of those who were originally assembled; and you will judge from the conduct of each how far, in your opinion, he may have concurred in that resistance, wherein the death of this person unfortunately ensued.
Having said so much on the third subject of inquiry, very little remains to be added on the fourth and last: which comprises all offences against the persons of Frederick Fitz-Clarence, William Legg, James Ellis, John Surman, William Westcoatt, William Charles Brooks, John Muddock, and Benjamin Gill, contrary to the form of an act passed in the 43rd year of the reign of his late majesty, the title whereof is set forth at length in the commission. So that you will observe that the jurisdiction given by this commission does not extend generally to all offences against the persons of the individuals before-named, nor to all offences against the form of the statute therein mentioned, but is limited 10 such offences against these persons as are contrary to the form of that statute.* That statute is one which has probably been brought under the view of many, if not all of you, on former occasions, so that I need trouble you the less upon it.
It is thereby enacted, that if any person or persons shall wilfully, maliciously, and unlawfully shoot at any of his majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point or level any kind of loaded fire arms against any of his majesty's subjects, and attempt by drawing a trigger or in any other manner to discharge the same at or against his or their person or persons; or shall wilfully, maliciously, and unlawfully stab or cut any of his majesty's subjects, with intent in so doing, or by means thereof, to murder or rob, or to maim, disfigure or disable such
43 Geo. III. c. 58, commonly called Lord Ellenborough's Act,
subject or subjects, or with intent to resist or prevent the lawful apprehension and detainer of the person or persons so stabbing or cutting, or the lawful apprehension and detainer of any of his, her, or their accomplice or accomplices, for any offences for which he, she, or they may respectively be liable by law to be apprehended, imprisoned, or detained ; in every such case, the person or persons so offending, tbeir counsellors, aiders and abettors, knowing of, and privy to, such offence, shall be declared to be felons without benefit of clergy.
There is, however, an express proviso or exception (which probably would have been implied from the language of the enacting part itself), that if the act be committed under such circumstances as that if death had ensued therefrom the same would noi in law have amounted to the crime of murder, the person indicted shall be acquitted of the felony.
As the cases likely to be presented to your consideration upon this statute will have arisen out of the resistance made to the peace officers, and to the military or other persons who sooner or later came to their aid, to which I have already referred, it will be obvious to you, that the observations hich I hare already offered upon the subject of arrest and resistance, in relation to the death of Richard Smithers, may in general be applied to this part also of your inquiry, and it is unnecessary for me to repeat them here.
If there should be an instance of any of those malicious acts mentioned in the statute committed, not in resistance of the intended arrest, or in the endeavour to escape, but wantonly and wilfully against the persons of any of the individuals named in the commission, by any person not intended to be arrested, or who had so far effectually escaped as to be for the time out of all danger of immediate arrest, such act, if any such there be, can hardly be attributed to any other motive than a malicious design to murder, or do some grievous bodily harm to the person who was the object of it, and therefore can hardly fail to be a felonious act, within the description of this statute ; except, indeed, it shall appear to have been the hasty result of a contest with unlawful aggressors, wherein the blood may have been so far heated as to reduce the crime to manslaughter, if death had ensued : but as I do not apprehend that any case of this nature is likely to come before you, I forbear to trouble you with any remarks upon it; being well assured that in this case, if it shall occur, as in all other parts of the important duty for the discharge of which you are assembled, the best security for a due execution of the trust reposed in you, is to be found in your own good