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Q. Armed or unarmed ?
Q. Upon yourself and the hussars approaching them, what did they attempt to do?
A. They fled between the fields ; in the first instance there was a man on the road, who put his hand out as if he was trying to form them up on the road ; but they paid no attention to him, but fled across the fields.
Q. And you and your men pursued them, and took a number of Prisoners ?
A. They threw away their arms, except about five or six men, who were taken with the arms n their hands.
Q. What arms were those that were taken in their hands? A. I think most of them
guns. Q. I believe when you arrived at Eastwood you met the High Sheriff of this county with the yeamanry in pursuit of the insurgents ?
A. We did
Q. They had come from Alfreton and Pentridge in pursuit of them,
A. So I understood.
Cross-examined by Mr. Denman, Q. You did not see the Prisoner ?
A. No, I did not; he was not with the party then: I did not see him.
Q. Did you see him at all that day?
A. No, they were not; when I first came they were standing on the road, and there was one man who attempted to form them up in opposition to us.
Q. You took him I suppose ?
A. No, I did not; he might have been taken amongst the rest, but I could not keep my eye upon him-I tried to do it.
Re-examined by Mr. Gurney. Q. Whether he was one of those you took there you are not able to say, not being able to identify him?
A. No, I could not keep my eye upon him.
Q. What number of muskets and guns and other arms were collected together?
A. About forty I believe.
May it please your Lordships, Gentlemen of the Jury, Although I have now for some years been a good deal accustomed to a public life in Courts of Justice, it has never fallen to my lot before, to be counsel either for the prosecution or a Prisoner in a case of High Treason; and therefore, I confess, when I consider that circumstance, when I contemplate this singular and solemn array of public justice, when I perceive myself placed for the first time in a public situation in a county to which I have been hitherto an utter stranger, I cannot, Gentlemen, but feel a great deal of diffidence in the discharge of the duty to which at this moment I am called. But I cannot forget, that I stand up here to-day, to exercise one of the proudest privileges of a British subject, which privilege is one of the fruits of that blessed revolution of 1688, to which my learned Friend, the Attorney General, in his address to you has already alluded; for, Gentlemen, till that time, persons accused of High Treason were forbidden by the law of England to make their defence before a Jury by any lips but their own, and I therefore feel, that I am placed here now in a situation of great trust and responsibility upon a public stage. I know that I have a right to inake the Prisoner's defence in a firm, bold, and fearless manner. I know that their Lordships will indulge me in discharging my duty to the Prisoner without dismay, and without fear that I shall endanger either myself or my client by
anything I may say in his defence. But, Gentlemen, if any persons here suppose that I have any intention to take advantage of this situation to hurl defiance against the Ministers of the public affairs of the country, or of the law, or that I have any intention but of speaking with awe and reverence of all the just objects of respect and veneration among us, they have much miscalculated the duty I owe to my client, to my country, and to myself.
Gentlemen, having said this, let me now call your attention to the nature of this important case, which the Attorney General of England has brought before you for your decision. I do not rise to vindicate the atrocious outrages which you have heard of in the evidence. God forbid that I should ever think or speak of those outrages but as in the highest degree criminal, as well as disgraceful to all the parties concerned in them; but you have been rightly told by the Attorney General that you must not suffer any prejudices that may have hitherto, or may now disturb your minds, respecting those outrages, to mislead you from the real question which you are here impanelled to try. You have been told that the question is not, whether the defendants in this indictinent have acted culpably, not whether manslaughter, or burglary, or robbery have been committed, but, whether the transactions of the 9th of June constituted the crime of High Treason, or a crime or crimes of other and different descriptions.
Gentlemen, I have stated that this is the first time it has fallen to my lot to be concerned in a trial for High Treason, and I believe that with regard to this particular species of High Treason, namely, levying war against the King, my case is not singular; for I think I may say, with the exception of but two or three of the formidable array of learned counsel who are opposed to us, none of them have had an opportunity either of taking a part in or hearing a trial for the offence which is imputed to the Prisoner at the bar. I am not aware that during his preşent Majesty's long and happy reign there has been one single instance of a trial and conviction for this offence of levying war against the King. Therefore, Gentlemen,
you will, I hope, excuse me, if on this novel occasion, and upon a subject with which we are all but imperfectly acquainted, I should take the liberty of trespassing upon your attention a little more in detail than is usual or requisite in ordinary cases, on the subject of the law of Treason, the question being, whether the acts proved have been in violation of that law?
The Attorney General has stated to you, that it is Treason and a levying of war against the King if numbers of persons assemble together, and by force propose to effect some general object; that is the Attorney General's definition of the crime: I cannot, however, concur in his definition, and therefore with all deference to that great officer, I must beg leave to controvert his doctrine, and to submit to their Lordships consideration and yours what I conceive to be the law upon this subject. My learned Friend has cited to you, in proof of his broad and sweeping definition, the authority of a most eminent and learned judge, Sir Michael Foster, who has written several learned discourses upon this and other subjects of law; they are but discourses, however, written in his closet, and we shall see presently how far they are to rule or to guide the opinions of the Judges in administering the law.
Gentlemen, as Mr. Justice Foster's discourse has been cited to you, I also must beg leave to call your attention to the discourses of another most perspicuous and learned writer, I mean Mr. Justice Blackstone, who, in his Commentaries on the Laws of England, treats of this crime; and he expresses himself thus :-"As this is the highest civil crime which any man can possibly commit, it ought, therefore, to be the most precisely ascertained ; for, if the crime of High Treason be indeterminate, this alone is sufficient to make a Government degenerate into arbitrary power: and yet, by the ancient common law, there was a great latitude left in the breasts of Judges to determine what was Treason, and what was not Treason ; whereby the creatures of tyrannical Princes had opportunity to create abundance of constructive Treasons; that is, to Faise, by forced and arbitrary constructions, offences iạto,
the crime and punishment of Treason, which were never suspected to be such." Then he goes on, -" But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the Statute 25 Edward III, was made, which defines what offences only for the future should be held to be Treason. This Statute must, therefore, be our text and our guide," says this learned writer,“ in order to examine into the several species of High Treason.” Then, in another part of this discourse, he says,-“ Thus careful was the Legislature, in the reign of Edward III, to specify and reduce to certainty the vague notions of Treason which had formerly prevailed in our Courts; but the Act does not stop here, but goes on - Because other like cases of Treason may happen in time to come, which may not be thought of or declared at present, it is accorded that, if any other Treason shall happen, the Judge shall tarry, without giving judgment, till the cause be shewn before the King and his Parliament, whether the thing be felony." Sir Matthew Hale, who, I may say without disparagement, was at least as eminent and able a writer
this subject as Sir Michael Foster, and is, indeed to the present day, our oracle of criminal law. Sir Matthew Hale, the Chief Justice of England in Charles the Second's time, is said, by Mr. Justice Blackstone, to be “very high in his encomiums on the great wisdom and care of Parliament in thus keeping Judges within the proper bounds and limits of this Act, by not suffering them to run out (upon their own opinions) into constructive treasons, though, in cases that seem to them to have a like parity of reasoning, but reserving them to the decision of Parliament. This is a great security to the public, the Judges, and even this sacred Act itself; and leaves a weighty memento to Judges to be careful and not over-hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled.” Then he proceeds thus :-“ In consequence of this power, not indeed orie ginally granted by the Statute of Edward III, but constitutionally inherent in every subsequent Parliament (which