These offences are,

First, all High Treasons, except such as relate to the coin:

Secondly, Misprisions of Treason:

Thirdly, The murder of one Richard Smithers, deceased, and any other crime or offence touching the death of that person:

Trial of Arthur Thistlewood

Fourthly, 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, or any of them, contrary to the form of an Act passed in the 43rd year of the reign of his late majesty, for (amongst other things) the further prevention of malicious shooting and attempting to discharge loaded firearms, stabbing, cutting, and wounding.

It is my present duty to offer to your consideration some remarks upon each of these subjects, for your assistance in the exercise of the important functions that will presently devolve upon you, when bills of indictment shall be laid before you.

The particular kinds of Treason, to which it may be proper for me to call your attention, are in part to be found in the ancient Statute of the 25th year of the reign of King Edward the Third, and in part in a Statute, passed for very wise purposes, in the reign of his late majesty.*

By the former of these Statutes, it is declared to be Treason, if a man do compass or imagine the death of our lord the King; or if a man do levy war against our lord the King in his realm. By the latter Statute it is enacted, That if any person shall, within the realm or without, compass, imagine, invent, devise, or intend, death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of our lord the King; or to deprive or depose him from the style, honour, or kingly name of the imperial crown of this realm, or of any other his majesty's dominions or countries; or to levy war against his majesty within this realm, in order by force or constraint to compel him to change his measures or counsels; or in order to put any force or constraint upon or overawe both Houses

* Stat. 36. G. 3rd, c. 7.

[684 or either House of Parliament; every person so offending shall be deemed and adjudged to be a Traitor.

You will have observed that in the several descriptions of offence which I have enumerated (except the levying war mentioned in the ancient Statute) the crime is made to consist in the compassing, imagination, or intention (which are all words of the same import) to perpetrate the acts, and not in the actual perpetration of them. But it is further required, by the ancient Statute, that the party accused of high Treason shall be thereof proveably attainted of open deed; and by the modern Statute, that the party shall express, utter, or declare his intention, by publishing some printing or writing, or by some overt act or deed. The law has thus wisely provided (because the public safety requires it), that in cases of this kind, which manifestly tend to the most extensive public evil, the intention shall constitute the crime; but the law has at the same time with equal wisdom provided (because the safety of individuals requires it), that the intention shall be manifested by some act tending towards the accomplishment of the criminal object.

Before the passing of the late Statute it had been settled, by several cases actually adjudged, and by the opinions of the textwriters on this branch of the law, that all attempts to depose the King from his royal state and title, to restrain his person, orto levy war against him, and all conspiracies, consultations and agreements for the accomplishment of these objects, were overt acts of compassing and imagining the death of the King. By this Statute, the compassing or intending to commit these acts that is, to depose his majesty, to restrain his person, or to levy war against him for the purposes that I have mentioned -is made a substantive treason; and thereby the law is rendered more clear and plain, both to those who are bound to obey it, and to those who are engaged in the administration of it. It may be proper for me to add, that it has been established, in the like manner, that the pomp and circumstances of military array, such as usually attend regular warfare, are by no means necessary to constitute an actual levying of war, within the true meaning of the ancient Statute. Insurrections and risings for the purpose of effecting, by force and numbers-however ill-arranged, provided or organized-any innovation of a public nature, or redress of supposed public grievances, in which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war; and, consequently, to compass or imagine such an insurrection, in order, by force and numbers, to compel his majesty to

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, is

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con

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

Having made these general observations, 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 weapons suitable to the accomplishment of the proposed assassination, and perhaps also of other traitorous purposes; that these persons resisted the peace officers by whom they were found, and the military who came to the aid of the officers; that in the course of their resistance and endeavours to escape (which as to many of them were for the time at least successful) Richard Smithers, one of the persons named in this commission, lost his life, by the act of one of those whom it was intended to arrest; and that pistols were discharged and weapons pointed against some or all of the other persons therein also named. Of these matters, or such as these, you have all, without doubt, previously heard and read; and I therefore take the liberty most earnestly to caution you to confine your attention, on the present occasion, to the evidence that will be laid before you, and to banish from your minds all such information as you may have previously received, either as to the nature or object of the supposed conspiracy, or as to the conduct or character of the particular individuals supposed to have participated in it, or to have been actors in these transactions.

Upon the law as applicable to these supposed matters of fact, I should tell you, that a conspiracy to murder a number of individuals, whether in a private or public station, however high or important the public station may happen to be, grounded only upon private malice har boured against them in the minds of the conspirators, and for the mere gratification of private revenge, and not meant to be accompanied or followed by any other act or matter, or to bring about any object of a public nature, however odious and criminal such a conspiracy may be, does not in law constitute the offence of high treason. But if the assassination be meant as the signal for or commencement of a tumultuous insurrection of large numbers of persons expected to join the conspirators, and with a view by force and numbers to take the government of the country into the hands of the leaders, or to compel the sovereign to adopt such measures as they may think fit to dictate to him, then the conspiracy to assassinate will assume a different character, and become an overt act of those species of treason, which consist in an intention to depose the King, or to levy war against him for one of the purposes before mentioned, and may also be an overt act of treason in compassing his death; because we know from experience, that the death of a sovereign has been the usual consequence of his deposition; and every person may reasonably be presumed to

contemplate and intend the probable and natural consequences of his own act, until the contrary be clearly shown.

If, therefore, a conspiracy to take away the lives of his majesty's ministers, either in the way that I have supposed, or in any other manner, shall be proved before you, you will naturally look out for some evidence manifesting the object and pur pose to be attained; and in weighing the nature and effect of such evidence, you will doubtless bear in mind the number, rank and offices of the persons thus devoted to destruction. The difficulty of supposing an intended assassination to be grounded only upon private malice, and meant for the gratification of private revenge alone, without any further purpose or object, increases not only with the number of the conspirators, but also with the number of the intended victims: because, although history furnishes many examples of deep and deadly private malice and revenge, borne by one person, and adopted or aided by his family, dependants and friends, against another person, his family or clan; yet I believe an instance will scarcely be found of malice of a private nature entertained by any considerable number of persons not connected with each other by blood or other bond of private union, against any considerable number of other persons alike unconnected by any private circumstances of association. It is still more difficult to conceive a case of merely private revenge, limited and confined to the intended assassination alone, where the intended victims happen to be a number of persons conducting the administration of government, and not appearing to be known to the conspirators otherwise than by their public character offices and conduct. In such a case it is natural to suppose that the object in view must be of a more public and extensive nature than the mere gratification of vindictive feelings.

But the facility of one supposition, and the difficulty of the other, must not supply the place of proof; they only conduce to the reception of the proof that may be offered, and to the credibility of evidence tending to the manifestation of ulterior designs. Such ulterior designs, if they shall appear to be of the nature to which I have alluded, and to relate to the usurpation of the government of this nation, or of this metropolis alone, in opposition to the constituted authorities of the realm, even for a season, will appear to the calm eye of sober reason to be wild and hopeless: But you, gentlemen, know that rash and evil-minded men, brooding over their own bad designs, gradually lose sight of the difficulties that attend the 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 numerous 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 unsuspected 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, however, 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 through 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 received 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 than the forfeiture 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 treason, 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.

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