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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 tbe 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, ihere 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 cireum- 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 bave 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 under 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 without 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 circumstances 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 e): 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 manner 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 to 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, their 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 no: 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 which I have 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
sense, and in your own general knowledge, the Tower to Newgate, and Richard Bradtemper, and discretion.
burn, John Shaw Strange, James Gilchrist, If, however, any unexpected difficulty and Charles Cooper were delivered by the shall arise in the progress of your inves- governor of the House of Correction for tigations, the court will be at all times the county of Middlesex into the custody ready to assist you with such further ad- of the keeper of Newgate. vice as you may have occasion to require.
Gentlemen, having detained you so long, with such observations as I thought
SESSIONS HOUSE, OLD BAILEY, necessary to offer to your consideration,
SATURDAY, APRIL 15th, 1820. you will now withdraw to your chamber to consider of such Bills as may be laid
Present, before you.
The Right Hon. Lord Chief Justice Abbott.
The Right Hon. The Lord Chief Baron (Sir
The several indictments found under James Gilchrist, and Charles Cooper, for
special Commission, were delivered into High Treason.
court with the following Caption : The Court, on the motion of Mr. At- Caption. BE IT REMEMBERED That at a torney General, ordered that the Sheriff Middleser special session of Oyer and should deliver to the solicitor for the pro
to wit. Terminer of our sovereign secution, a list of persons qualified to lord the king of and for the county of Midserve on Juries upon trials for High Trea- dlesex holden at the Session House on son to be returned for the trial of the Clerkenwell Green in the said county on defendants, and directed that notice should Monday the twenty-seventh day of March be given to each of the prisoners, that an in the first year of the reign of our soindictment was found against him, and vereign lord George the fourth by the that on application to any of the judges grace of God of the united kingdom of named in the commission, counsel would Great Britain and Ireland King Defender be assigned to him, and an order made for of the Faith before the Right Honourable such counsel and his solicitor to have Sir Charles Abbott Knight Chief Justice access; which notice was given accord- of our said lord the King assigned to ingly.
hold pleas before the King himself Sir On Wednesday, the 29th of March, the Robert Dallas Knight Chief Justice of onr grand jury returned a true bill against said lord the King of his court of ComArthur Thistlewood, John Thomas Brunt, mon Pleas and others their Fellows JusRichard Tidd, James William Wilson, tices and commissioners of our said lord John Harrison, and John Shaw Strange, the King assigned by letters patent of our for the murder of Richard Smithers.
said lord the King under his great seal of A true bill against Arthur Thistlewood, the united kingdom of Great Britain for maliciously shooting at William and Ireland made to them and others and Westcoatt.
any two or more of them (of whom one A true bill against James Ings, for of them the aforesaid Sir Charles Abbott maliciously shooting at William Charles and Sir Robert Dallas amongst others in Brooks.
the said letters patent named our said A true bill against Richard Tidd, for Jord the King willed should be one) to maliciously shooting at William Legg, inquire by the oath of good and lawful
A true bill against James William Wil. men of the county of Middlesex of all son for drawing the trigger of a loaded pis- high treasons and misprisions of high tol, with intent to shoot John Muddock. treason (other than such as relate to the
On the 3rd of April, Mr. Maule, solici- coin) and of the murder of one Richard tor for the treasury, delivered to each of Smithers deceased and of any other crime the prisoners a copy of the caption, and or offence touching the death of the said of the indictment for High Treason, a list Richard Smithers and of any offence or of the Jury for their trial, and a list of the offences against touching or concerning witnesses to be produced on their trial for the persons of Frederick Fitz-Clarence proving the said indictment.
William Legg James Ellis John Surman On Friday, the 14th of April, Arthur William Westcoatt William Charles Thistlewood, William Davidson, James Brooks John Muddock and Benjamin Ings, John Thomas Brunt, Richard Tidd, Gill or any of them contrary to the form James William Wilson,and Joba Harrison, of an act made and passed in the fortywere removed by Habeas Corpora from third year of the reiga of his late majesty
King George the third intituled “An act for the further prevention of malicious shooting and attempting to discharge loaded fire arms stabbing cutting wounding poisoning and the malicious using of means to procure the miscarriage of women and also the malicious setting fire to buildings and also for repealing a certain act made in England in the twentyfirst year of the late King James the first intituled “An act to prevent the destroying and murthering of bastard children" and also an act made in Ireland in the sixth year of the reign of the late Queen Anne, also intituled “An act to prevent the destroying and murthering of bastard children, and for making other provisions in lieu thereof and also the accessaries of them or any of them within the county aforesaid as well within liberties, as without, by whomsoever and in what manner soever done committed or perpetrated when how and after what manner And of all other articles and circumstances concerning the premises and every or any of them in any manner whatsoever and the said treasons and other the premises according to the laws and customs of England for this time to hear and dem termine by the oath of Job Raikes esquire John Stock esquire Thomas Milroy esquire Robert Batson esquire William Hills gentleman Henry Thompson brewer Richard Gibbs esquire Thomas Lermette esquire James Gordon esquire William Anderson esquire William Parry esquire John Booth esquire John Henry Pakenham esquire John Warren gentleman George Frederick Young shipbuilder Robert Meacock gentleman Richard Jennings esquire James Taylor esquire John Johnson esquire Francis Douce esquire John William Horsley esquire William Venning gentleman and Stephen Taylor esquire good and lawful men of the county aforesaid now here sworn and charged to inquire for our said lord the King for the body of the said county touching and concerning the premises in the said letters patent mentioned It is presented in manner and form as followeth (that is to say) Middlesex The jurors for our lord the
to wit. King upon their oath present that Arthur Thistlewood late of the parish of Saint Clement Danes in the county of Middlesex gentleman William Davidson late of the parish of Saint Marylebone in the county of Middlesex labourer James Ings late of London labourer John Thomas Brunt late of the parish of Saint Andrew Holborn in the county of Middlesex labourer Richard Tidd late of the parish of Saint Andrew Holborn in the county of Middlesex labourer James William Wilson late of the parish of Saint Marylebone in
the county of Middlesex labourer John Harrison late of the parish of Saint Marylebone in the county of Middlesex labourer Richard Bradburn late of the parish of Saint Giles-in-the-fields in the county of Middlesex labourer John Shaw Strange late of London labourer James Gilchrist late of London labourer and Charles Cooper late of London labourer being subjects of our said lord the King not having the fear of God in their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said lord the King and wholly withdrawing the love obedience fidelity and allegiance which every true and faithful subject of our said lord the King should and of right ought to bear towards our said lord the King on the fifth day of February in the first year of the reign of our said present sovereign lord George the fourth by the grace of God of the united kingdom of Great Britain and Ireland King Defender of the Faith and on divers other days and times as well before as after with force and arms at the parish of Saint Marylebone in the county of Middlesex inaliciously and traitorously amongst themselves and together with divers other false traitors whose names are to the said jurors unknown did compass imagine invent devise and intend to deprive and depose our said lord the King of and from the style honour and kingly name of the imperial crown of this realm and the said compassing imagination invention device and intention did then and there express utter and declare by divers overt acts and deeds hereinafter mentioned that is to say IN ORDER TO FULFIL perfect and bring to effect their most evil and wicked treason and treasonable compass. ing imagination invention device and intention aforesaid they the said Arthur Thistlewood William Davidson James Ings John Thomas Brunt Richard Tidd James William Wilson John Harrison Richard Bradburn John Shaw Strange James Gilchrist and Charles Cooper as such false traitors as aforesaid on the said fifth day of February in the first year of the reign aforesaid and on divers other days and times as well before as after with force and arms at the said parish of Saint Marylebone in the said county of Middlesex maliciously and traitorously did assemble meet conspire and consult amongst themselves and together with divers other false traitors whose names are to the said jurors unknown to devise arrange and mature plans and means to subvert and destroy the constitution and government of this realm as by law established AND FURTHER TO FULFIL perfect and bring to effect their most evil and wicked treason and treasonable compassing imagination
invention device and intention aforesaid pikehandles and pikeheads and divers they the said Arthur Thistlewood William large quantities of ammunition to wit Davidson James Ings John Thomas Brunt gunpowder leaden bullets slugs and handRichard Tidd James William Wilson grenades with intent there with to arm John Harrison Richard Bradburn John themselves and other false traitors in Shaw Strange James Gilchrist, and Charles order to assassinate kill and murder divers Cooper as such false traitors as aforesaid of the privy council of our said lord the on the said fifth day of February in the King employed by our said lord the first year of the reign aforesaid and on King in the administration of the affairs divers other days and times as well before and government of this kingdom AND as after with force and arms at the said FURTHER TO FULPIL perfect and bring to parish of Saint Marylebone in the said effect their most evil and wicked treason county of Middlesex maliciously and trai. and treasonable compassing imagination torously did assemble meet conspire con- invention device and intention aforesaid sult and agree amongst themselves and they the said Arthur Thistlewood William together with divers other false traitors Davidson James Ings John Thomas Brunt whose names are to the said jurors un- Richard Tidd James William Wilson known to stir up raise make and levy in- John Harrison Richard Bradburn John surrection rebellion and war against our Shaw Strange James Gilchrist and Charles said lord the King within this realm and Cooper as such false traitors as aforesaid to subvert and destroy the constitution on the said fifth day of February in the and government of this realm as by law first year of the reign aforesaid and on established AND FURTHER TO FULFIL per- divers other days and times as well befect and bring to effect their most evil and fore as after with force and arms at the wicked treason and treasonable compass- said parish of Saint Marylebone in the ing imagination invention device and said county of Middlesex maliciously and intention aforesaid they the said Arthur traitorously did procure provide and Thistlewood William Davidson James have divers large quantities of arms to Ings John Thomas Brunt Richard Tidd wit guns muskets blunderbusses pistols James William Wilson John Harrison swords bayonets pikes pikehandles and Richard Bradburn John Shaw Strange pikeheads and divers large quantities of James Gilchrist and Charles per as ammunition to wit gunpowder leaden such false traitors as aforesaid on the said bullets slugs and hand-grenades with intent fifth day of February in the first year of therewith to arm themselves and other the reign aforesaid and on divers other false traitors in order to raise make and days and times as well before as after with levy insurrection rebellion and war against force and arms at the said parish of Saint our said lord the King within this realm Marylebone in the said county of Middle- and to subvert and destroy the constitue sex maliciously and traitorously did as- tion and government of this realm as by semble meet conspire consult and agree law established AND FURTHER TO FULamongst themselves and together with FIL perfect and bring to effect their most divers other false traitors whose names evil and wicked treason and treasonable are to the said jurors unknown to assassin- compassing imagination invention device ate kill and murder divers of the privy and intention aforesaid they the said council of our said lord the King employed Arthur Thistlewood William Davidson by our said lord the King in the adminis- James Ings John Thomas Brunt Richard tration of the affairs and government of
Tidd James William Wilson John Harrison this kingdom AND FURTHER TO FULFIL Richard Bradburn John Shaw Strange perfect and bring to effect their most evil James Gilchrist and Charles Cooper as and wicked treason and treasonable com
such false traitors as aforesaid on the passing imagination invention device and said fifth day of February in the first year intention aforesaid they the said Arthur of the reign aforesaid and on divers other Thistlewood William Davidson James days and times as well before as after with Ings John Thomas Brunt Richard Tidd force and arms at the said parish of Saint James William Wilson John Harrison Marylebone in the said county of MiddleRichard Bradburn John Shaw Strange sex maliciously and traitorously did assemJames Gilchrist and Charles Cooper as blemeet conspire consult and agreeamongst such false traitors as aforesaid on the said themselves and together with divers other fifth day of February in the first year of false traitors whose names are to the said the reign aforesaid and on divers other jurors unknown to seize and take possesdays and times as well before as after with sion of divers cannon warlike weapons force and arms at the said parish of Saint arms and ammunition in divers places Marylebone in the said county of Middle- deposited and being with intent by and sex maliciously and traitorously did pro- with the said cannon warlike weapons cure provide and have divers large quan- arms and ammunition to arm themselves tities of arms to wit guns muskets blun- and other false traitors and to raise levy derbusses pistols swords bayonets pikes and make insurrection rebellion and war