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That Act, Gentlemen, was again revived in the time of George I. My learned friend, Mr. Cross, read to you the preamble, reciting, that rebellious riots were to be quelled, that all assemblages, drawn together for the purpose of alienating the affections of the people from the King, were to be punished and suppressed. Their punishment is very nearly the same, and under the same conditions, as in the Act passed in the reign of Queen Mary. Then, Gentlemen, I contend, that this offence has received as direct a definition in the laws of riot, from time to time enacted, as the offence of Treason itself received from the ancient and sacred Statute already cited, under which this Indictment is framed.
My learned friend, as I have remarked, opened his case so very generally, that he hardly gave me a position to contend with. I see now a mass of learned volumes brought here to be used in the reply, when the Attorney General will, as he has a right to do on the part of the Crown, address you last. I know not what books he will produce; but I am well aware that he will be enabled to refer to certain decisions inconsistent with the principles I have urged ; and such decisions, I doubt not, will be industriously laid before you. You, Gentlemen, will form your own opinion : but if, in the result, you shall find yourselves brought to this pass, that between two inconsistent propositions, laid down by equal authority, you are compelled to make your election, you will not hesitate to elect that which is most consonant to reason, to principle, to the great origin of all authority in those who sit here, or elsewhere, for the trial of offences; I mean, to the imperial Parliament of this realm, which, in the reign of Edward III. declared there should be no extension of the strict Statute it enacted; but that, on the contrary, if any new case occurred, it should be submitted to the consideration of the King in Parliament, and should not be decided by the Judges in their Courts of Law.
Gentlemen, I am happy when it is in my power to agree with anything which falls from my learned friends : and I do most cordially agree in all they have said in praise
of the Constitution of England, and in gratitude to that great and glorious revolution from which that Constitution takes its origin, To that revolution we are indebted for blessings which it is impossible to enumerate : we are indebted to it, not only for its immediate consequences, and all the positive beneficial changés it brought about, but for that liberality of sentiment,-for that quick sense of public spirit,-for that English feeling,-which, I trust, pervades the hearts of you all; which we have seen, I think, nobly exhibited in the conduct of most of the witnesses on this trial; which is the great security for all that is valuable in our public institutions; which has raised this country, in spite of its smallness and its remote situation, almost to the empire of the world; whích gained the battles of Waterloo and Trafalgar; and which, deriving its birth from our free constitution, will, in its turn, while it remains unimpaired, preserve that Constitution to the latest of our posterity.-Gentlemen, we are all, in our turns, in our several stations and offices,-the guardians of that Constitution; but I doubt whether there is any situation in which we have the opportunity of rendering it such important services as when we are fulfilling that duty which now devolves upon you, in trying the cause of a friendless Prisoner, brought before you by the State, on a prosecution for High Treason,
The Legislature, by which the advantages of the revolution of 1688 were secured to us, justly jealous of the anxiety of the State in conducting prosecutions for High Treason, among other important privileges, conferred upon the Prisoner charged the right of knowing the Jury before whom he is to be tried. The law requires, that he shall be furnished with a list of the freeholders summoned, and gives him time to enquire as to their character, their principles, and their understandings; he has the privilege of challenging those to whom he has the least objection, and thus possesses, to a certain degree, the liberty of selecting those to whose honor his life and his character are to be confided.
By another important alteration, produced by the revo
lution, and this, perhaps, is the greatest and most beneficial of them all, for it pervades all the classes of society, and promotes the happiness and security of men in all their relations, the Judges were made independent of the Crown, and placed upon that footing of integrity upon which they so proudly stand.-Gentlemen, I have no difficulty in telling you it was high time that reform should be made. ' For several years,-I might say for centuries preceding the revolution,—there is hardly a State Trial of any description that a lawyer can read without blushing. He finds there recorded the degradation of an honorable profession, which I trust has since redeemed its character: he reads of the base subserviency to the Crown of those juries who were placed as the grand bulwark for the people, and the corrupt complaisance of Judges who ought to have protected the accused.-Gentlemen, the infamous conduct of Jeffries and Scroggs (for we might trace down the pedigree from the days of Tresilian to the very moment of the revolution) shed such disgrace and horror over the early State Trials, that, when I rise from perusing that bloody catalogue of unjust attainders, most of which have been reversed by Act of Parliament, --when I turn from that register of iniquity and shame, and find myself in the nineteenth century, surrounded with Judges such as those I now see presiding, and facing such a Jury as I have now the happiness to address, --it seems like emerging from the darkness of an infected slaughter-house, to greet the blessed light of Heaven, and breathe the pure air by which life is sustained.Gentlemen, before the revolution no man was safe, however innocent, who came into Court at the instance of the Crown. He was exposed to opprobrious revilings from the Attorney General ; he was browbeaten by the Court in attempting to defend his life; his witnesses durst not appear, or appeared only to be insulted and abused; the province of the Jury was constantly in, vaded, and if they ventured to say “Not Guilty,” where the Court wished to convict, ihey were either fined or sent to gaol for daring to form their own judgment upon their own oath.--Such is literally the judicial history of those
times, and then it was that the law of Edward III.--that law so salutary, so beneficial, and so plain, -received those constructions of which I still dispute the legality.
Gentlemen, from the revolution to the present time, there is but a single case in which that law of constructive Treason has been carried into effect, I allude to the case of Damaree and Purchase; both in the humblest condition of life, the one a waterman and the other a porter, who went about the streets with a party who were supposed to wish to turn out the Protestant succession, and to introduce the Pretender ;-friends of legitimacy, but enemies of loyalty. Their cry was in favor of Dr. Sacheverell, “down with the meeting houses;" the Dissenters being friendly to the Protestant succession and the existing government, while the church of England was, in general, averse to it. These two persons were, by the law of constructive Treason, deemed guilty of levying war against the King, but neither of them was executed. However, I give my learned Friends the full benefit of that case, for most certainly the Judges considered themselves bound by precedents to pronounce them guilty.
On the trial of Lord George Gordon, some allusion was made to that case, and I remember the expression of Lord Mansfield, and dare say the Attorney General will recollect it 100. Speaking to the Jury on this doctrine, his Lordship says, “however extraordinary it may appear to . your ears, it is founded in strong reason, if their object is to destroy a thing bad in itself, though not permitted thein to destroy, as in an insurrection to destroy all
. bawdy, houses it is High Treason." Lord Mansfield himself, was, therefore, struck with this constructive Treason, as something extraordinary ; but, he adds in justification of it, that it is founded in strong reason.
Now, Gentlemen, it may be founded, perhaps, in strong reason, and powerful arguments might be urged for making it the law of the land; but the question in a court of justice is, whether it is the law of the land, and whether the statuţe of Edward III. so capable of expressing all it projected, would not have expressed that, if it had intended that it
should be the law. You will not forget, that upon that statute alone we are now brought here before you, the other two charges are in a great degree nominal, they resolve themselves into the first, and if that first is not made out, they also must fall to the ground.
Then, Gentlemen, why did the Judges decide that case of Damaree and Purchase as they did ? For no other reason than that other cases had been decided previously to the revolution, and in the times I have feebly attempted to describe, in direct hostility to the principle for which I now contend. They proceeded upon the authority of Benstead's case which Mr. Justice Foster declares not to be law, as it is reported; nor can it be law, unless a Privy Councillor can be identified with the King, for the law declares that levying war against the King shall be Treason, and that was levying war only against Archbishop Laud. That case was decided when the Judges were very far from being what Judges ought to be, and are now; in the reign of that unhappy and arbitrary monarch, Charles I. and just before the period when his people, goaded by oppression, rose in arms against him. It is not a little remarkable, that the Archbishop, in a very few years, himself fell a victim to that very constructive Treason which was so extended for his protection. That case was probably an extremely aggravated assault, and there were laws by which the outrage might have been punished; but wlien I see these improper proceedings stigmatized as High Treason, I cannot help agreeing with Mr. Justice Foster, that in reason, in sense, and in law, they might have been as correctly designated by any
by any other name.
Shall I be told by the Attorney General that I am inconsistent, at one time crying up the arguments of Mr. Justice Foster, and at another depreciating his authority. Gentlemen, I entertain for his character the highest respect; yet I must be allowed to observe, that the discourses composed by him are not to be placed on a level with the decisions of a Judge upon the Bench pronouncing upon oath on the lives and liberties of his fel