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Concealment, as you well know, is properly a negative fact; and therefore, if the treason and the knowledge of it be proved, and the knowledge shown to have existed at such a time, and under such circumstances, as afforded a reasonable opportunity for discovery, the proof of a discovery lies properly upon the party charged, though on the one hand, there may possibly be circumstances from which a discovery may be inferred, and on the other hand, there may be circumstances manifesting an intention to conceal, and consequently excluding any presumption in your minds in favour of the accused, though not excluding the proof of a discovery, before the jury by whom the party may be tried, if he shall be able to offer it, when he makes his defence against the charge.

The consideration of all such cireumstances may, I am persuaded, gentlemen, be very safely entrusted to you, so far as your duty extends, without further observation on my part.

The third subject of inquiry, is the murder of Richard Smithers, or any other crime or offence touching the death of that person.

This is the person who is supposed to have lost his life on the occasion of the attempt made to arrest some of those who are now in custody under a charge of high treason. It will therefore be material for you to direct your attention to the place, the time, and the circumstances under which that attempt to arrest was made.

The caution required by the law of England in the conduct of officers and ministers of justice proceeding to arrest for criminal matters persons who may happen to be in a dwelling-house, whereof the doors are closed, is confined to a dwelling-house alone. All other buildings, or places of meeting, may lawfully be opened and entered for the purpose of arresting criminals, without any notification of the purpose previously made; and the persons who may be found within, deriving no protection from the place where they are found, are bound to yield themselves upon the same demand or notification as if they were met with in the field or open street; and this need only be in the first instance a general notification of the character and purpose of the officers, conveyed in any words, or in any form or manner, that may be intelligible to those who hear or see them. If the persons thus required to submit desire further information as to the authority to which they are called upon to yield, it behoves them to demand it; for, if after such notification they resort to instant resistance, and to the use of deadly weapons, and happen to slay any of those to whom they are required to

yield, they do so at their own peril; and provided their arrest would be lawful, then he by whom a death-wound may be inflicted, and all who unite with him in the resistance, become guilty of the crime of murder.

An arrest, under the authority of the warrant of a competent magistrate, for a criminal matter specified in the warrant, by any of the persons named therein, and by any others whom they may take to their aid, is a lawful arrest. So also is an arrest by peace officers, without warrant, for felony, or other higher crime actually committed or reasonably alleged to them to have been committed by the persons arrested. So likewise is an arrest by such officers of persons actually engaged in any breach of the peace; or of persons assembled, and arming, and preparing themselves for the immediate perpetration of murder, or other felony; because such assembling and preparation are in themselves criminal acts, and the arrest of the persons assembled may, in many cases, be absolutely necessary for the prevention of the accomplishment of their still more criminal purpose.

I have mentioned these instances of arrest and resistance, because I apprehend the cases likely to be submitted to your consideration will fall within one or other of them.'

But, in order that no inference may be drawn from my silence on another topic, it seems proper to add, that it must by no means be taken for granted, that persons required to yield themselves to officers of the peace, even in case the officers be not duly authorized to arrest them, may instantly and before any actual assault on their persons, and without warning to the officers to withdraw or stand off, attack with deadly weapons and slay the officers, without subjecting themselves to the crime of murder. A killing, under such circumstances, would undoubtedly be manslaughter at the least; and as the circumstances appear to denote a wicked heart, a mind grievously depraved, and motives highly criminal (which is the general notion of malice in our law), such a case, if ever it shall unfortunately happen, will require grave and serious consideration.

In speaking of those who may become guilty of murder, by the slaying of an officer under the circumstances that I have mentioned, you will bear in mind that I used the expression, "all who unite in resistance with him who gave the death blow."

I used these words, because where several persons are assembled for any purpose, be it lawful or unlawful, and something wholly unexpected and foreign to the general design happens to occur 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 not 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, temper, and discretion.

If, however, any unexpected difficulty shall arise in the progress of your investigations, the court will be at all times ready to assist you with such further advice as you may have occasion to require.

Gentlemen, having detained you so long, with such observations as I thought necessary to offer to your consideration, you will now withdraw to your chamber to consider of such Bills as may be laid before you.

On Tuesday, March the 28th, the grand jury returned a true bill against 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, for High Treason.

The Court, on the motion of Mr. Attorney General, ordered that the Sheriff should deliver to the solicitor for the prosecution, a list of persons qualified to serve on Juries upon trials for High Treason to be returned for the trial of the defendants, and directed that notice should be given to each of the prisoners, that an indictment was found against him, and that on application to any of the judges named in the commission, counsel would be assigned to him, and an order made for such counsel and his solicitor to have access; which notice was given accordingly.

On Wednesday, the 29th of March, the grand jury returned a true bill against Arthur Thistlewood, John Thomas Brunt, Richard Tidd, James William Wilson, John Harrison, and John Shaw Strange, for the murder of Richard Smithers.

A true bill against Arthur Thistlewood, for maliciously shooting at William Westcoatt.

A true bill against James Ings, for maliciously shooting at William Charles Brooks.

A true bill against Richard Tidd, for maliciously shooting at William Legg,

A true bill against James William Wilson for drawing the trigger of a loaded pistol, with intent to shoot John Muddock.

On the 3rd of April, Mr. Maule, solicitor for the treasury, delivered to each of the prisoners a copy of the caption, and of the indictment for High Treason, a list of the Jury for their trial, and a list of the witnesses to be produced on their trial for proving the said indictment.

On Friday, the 14th of April, Arthur Thistlewood, William Davidson, James Ings, John Thomas Brunt, Richard Tidd, James William Wilson, and John Harrison, were removed by Habeas Corpora from

the Tower to Newgate, and Richard Bradburn, John Shaw Strange, James Gilchrist, and Charles Cooper were delivered by the governor of the House of Correction for the county of Middlesex into the custody of the keeper of Newgate.

SESSIONS HOUSE, OLD BAILEY,

SATURDAY, APRIL 15th, 1820.
Present,

The Right Hon. Lord Chief Justice Abbott.
The Right Hon. Lord Chief Justice Dallas.
The Right Hon. The Lord Chief Baron [Sir
R. Richards.]

The Hon. Mr. Justice Richardson.
The Common Sergeant.

And other His Majesty's Justices, &c.

The several indictments found under special Commission, were delivered into court with the following Caption: Caption. BE IT REMEMBERED That at a Middlesex special session of Oyer and to wit. Terminer of our sovereign lord the king of and for the county of Middlesex holden at the Session House on Clerkenwell Green in the said county on Monday the twenty-seventh day of March in the first year of the reign of our sovereign lord George the fourth by the grace of God of the united kingdom of Great Britain and Ireland King Defender of the Faith before the Right Honourable Sir Charles Abbott Knight Chief Justice of our said lord the King assigned to hold pleas before the King himself Sir Robert Dallas Knight Chief Justice of onr said lord the King of his court of Common Pleas and others their Fellows Justices and commissioners of our said lord the King assigned by letters patent of our said lord the King under his great seal of the united kingdom of Great Britain and Ireland made to them and others and any two or more of them (of whom one of them the aforesaid Sir Charles Abbott and Sir Robert Dallas amongst others in the said letters patent named our said lord the King willed should be one) to inquire by the oath of good and lawful men of the county of Middlesex of all high treasons and misprisions of high treason (other than such as relate to the coin) and of the murder of one Richard Smithers deceased and of any other crime or offence touching the death of the said Richard Smithers and of any offence or offences against touching or concerning 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 made and passed in the fortythird year of the reign 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 determine 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 helate of the parish of Saint Marylebone in the county of Middlesex labourer James Ings late of London labourer John Thomas By 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 plate 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 maliciously 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 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 consult and agree amongst themselves and together with divers other false traitors whose names are to the said jurors unknown to stir up raise make and levy insurrection rebellion and war against our said lord the King within this realm and 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 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 consult and agree amongst themselves and together with divers other false traitors whose names are to the said jurors unknown to assassinate kill and murder divers of the privy council of our said lord the King employed by our said lord the King in the administration of the affairs and government of this kingdom AND FURTHER TO FULFIL perfect and bring to effect their most evil and wicked treason and treasonable compassing 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 procure provide and have divers large quantities of arms to wit guns muskets blunderbusses pistols swords bayonets pikes

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pikehandles and pikeheads and divers large quantities of ammunition to wit gunpowder leaden bullets slugs and handgrenades with intent there with to arm themselves and other false traitors in order to assassinate kill and murder divers of the privy council of our said lord the King employed by our said lord the King in the administration of the affairs and government of this kingdom AND FURTHER TO FULFIL perfect and bring to effect their most evil and wicked treason and treasonable compassing 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 procure provide and have divers large quantities of arms to wit guns muskets blunderbusses pistols swords bayonets pikes pikehandles and pikeheads and divers large quantities of ammunition to wit gunpowder leaden bullets slugs and hand-grenades with intent therewith to arm themselves and other false traitors in order to raise make and levy insurrection rebellion and war against our said lord the King within this realm and 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 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 assemblemeet conspire consult and agreeamongst themselves and together with divers other false traitors whose names are to the said jurors unknown to seize and take possession of divers cannon warlike weapons arms and ammunition in divers places deposited and being with intent by and with the said cannon warlike weapons arms and ammunition to arm themselves and other false traitors and to raise levy and make insurrection rebellion and war

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