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another. Was that like glorying in the act? did he follow the example? did he fire at any man ? I know that Mr. Raynor fancies that he cocked his gun at him and jogged him forward; but I am most positively instructed that Mr. Raynor has misconceived this, that the gun was not cocked at that tiine, and that his fears led him to suppose that it was so : you may easily conceive, in the agitation of such a moment, what the feelings of Mr. Raynor would be, and that his evidence on this point may be mistaken without any discredit to him. But after all, perhaps, I am wasting time on this discussion ; I protest against it altogether, as having nothing to do with the charge of High Treason it may be connected with a riot either rebellious or other and I cannot conceive what effect it was calculated to produce upon your minds, except an effect which I know you will carefully guard against, that of exciting an unfair prejudice on the actual charge ; as if he were less an object of your justice, or even of that humane and charitable consideration which Juries always give to the case of prisoners, if you should in any way find him connected with that most atrocious offence. But I entreat you will particularly observe his Lordship.when he comes to sum up the evidence on this point, and form your own opinion whether it might not be the conduct of the best man upon earth compelled to proceed with the party, but solicitous to prevent the repetition of such an outrage.
Gentlemen, I do not trouble you by travelling through all the particulars, because I do not see that the reiterated proof of the same or similar facts by different witnesses carries the case any further. It is quite impossible to deny that these acts were done, and done with mischievous ina tentions; but the question is whether a conspiracy to overturn the government has been proved, if not, my learned Friends have failed in making out the case against the Prisoner.
We have been told of the rising on Nottingham Forest such as it was; you see there was a number of persons, of whom Roper says that ten had poles in their hands and
the rest had not. My Friend, Mr. Richardson, asked the witness whether the remainder might not have poles though he did not see them: that I thought a pretty sharp question, leading you to infer something that could not be proved; and I must say, that all the questions proposed on the part of the Crown displayed a zeal and activity not very usual in criminal prosecutions, nor quite consistent with the character of such a proceeding as this. We have heard discussions on the admissibility of particular pieces of evidence which the Court have stopped by recommending that the question should be withdrawn, and throughout you have witnessed the greatest zeal to bring forward every particle of the conduct of any of the parties to affect the Prisoner at the bar with High Treason. Well, if an hundred men, with or without poles, came and demanded arms of Mr. Roper, that may prove that Brandreth had made a true representation of what was passing in that quarter, and I do not mean to dispute that head of evidence to that extent, not a very formidable extent, as affecting this Prisoner, for you will consider and decide the point stated by Lord Ellenborough on the Trial of James Watson, whether his conduct is to be classed among riots of an aggrarated description, or whether it amounts to High Treason. Another observation of the same noble and learned Judge strikes me as extremely important, and I hope you will not lose sight of it. In laying down the law upon this subject, his Lordship says, “Insurrections to throw down all Inclosures, to alter the established Law, or change religion, to enhance the price of all labour, or to open all prisons; all risings to effect these innovations of a public and general concern by an armed force.” So much of the sentence being extracted from Mr. Justice Foster's discourse, to which Lord Ellenborough adds, “ And by any multitude compeient to effect the purpose as much as if they were armed, for what he says comes to that.” Now Gentlemen, the imputed purpose being in this case to subvert the Government of this country, I ask if you are prepared to say, upon your oaths, that this miserable multitude
however dangerous and offensive to the neighbourhood, was competent to effect that object? That is a part of Lord Ellenborough's definition of High Treason ; see how it applies. There is an army which does not keep together for ten hours, which marches towards Nottingham on false representations of all which had taken place there, though Brandreth may have told the truth in saying something was to be done. In their whole conduct there are no two things which can be put together as cause and effect: it is like taking pikes to wage war against “some bright parricular star," so infinite is the distance between the means and the end. So utterly absurd is the plan, that you must be convinced, not only that the preparations were not competent to effect the alleged purpose, but that if properly met and resisted, they were incompetent to effect any pur
I have often, Gentlemen, expressed the regret I feel that information was not giren to a Magistrate, and this appears to me a great fault in all concerned. I must be allowed to state it as a fault in Mr. Goodwin, (though I should be unwilling to detract from his general merits), that knowing enough to think it necessary to swear in special Constables, he did not give such information as would have led to the suppression of this riot by force, in the instant of its breaking out. Unhappily, that was not done; but from the concurrence of circumstances, the darkness of a stormny night, the tame submission of some, and the want of resistance in all, the men were encouraged to proceed in their strange.expedition, and their numbers continued to gather and increase, I am not blind to the danger of such tumults, nor shall I deny, that if this body had long remained unchecked, it might possibly in the course of tiore have become High Treason; but to describe it as having attained that character at the moment the army was washed away by the rain, and the men were sliding off from one another, because they began to detect the nonsense of their speculations, does appear to me such an extraordinary stretch of language, as never was employed before, and will not, I trust, be
countenanced for the first time in a case of so much solemnity; in the case of a Prisoner who stands trembling before you, and must either receive life and happiness at your hands, without, however, escaping the due punishment that may belong to his other offences, or by your verdict must be consigned to a cruel and an ignominious death, on a charge too that involves the most important public interests of this great and free country. .
Gentlemen, I wish to make one more observation on the law of the case which escaped me as I was going on : and I slate unfeignedly that the conclusion to which I am led by reasoning, of which I cannot detect the fallacy, I do feel it my duty to lay before the Court and the Jury, with full contidence that you will see it in the same light that I do. As I find it laid down by Lord Hale, that levying war against the King is a question of fact for the Jury; as I find it laid down by Justice Foster, that levying war against the King is a question of intention, which is most peculiarly a fact for the Jury; as I find it laid down by the highest authorities cited in East's Pleas for the Crown, that levying war is a matter of fact to be decided, not by the Court, because the law cannot define beforehand the mode in which Treason may shew itself, but on the circumstances of the case, to be considered and disposed of by the Jury: L not only in consequence of these principles, call upon you to deliberate upon the evidence laid before you, and pronounce whether war has been levied; but I cannot avoid drawing that other conclusion, that the Judges never possessed the right to decide upon that question. If, then, this interference was an usurpation at the first, it is an usurpation still: and we may remember that under another very iinportant head of State prosecutions the same opinion and practice had prevailed, and was at length declared erroneous. In the case of libels, it was considered for centuries that the Court were to decide upon the character and quality of the libel, and that the Jury had nothing to decide upon but the mere fact of publication. When I mention the name of Mr. Erskine, you will probably recollect the eloquent and adınirable argument he delivered in
the case of the Dean of St. A saph, contending, in opposition to the Court, that the Jury were to take the whole case into their consideration, and that it was altogether a fact for them to decide. Mr. Erskine was frequently rebuked by the Court, he was considered as arguing an untenable proposition, but what was the result? The result was, that after an able but unsuccessful struggle of several years, an Act of Parliament was passed, declaring that the question of libel was a question for the Jury, and that therefore that illustrious orator had been right in his contention. When I was told, as perhaps I may be told again to-day, that I am calling upon you, Gentlemen, to invade the province of the Judges, by deciding on matters of law, I deny the charge : my learned Friend may say it is matter of law, but, supported by these great oracles of legal wisdom, carried down to the latest times, that the levying of war against the King is a question of fact, I cannot defer to my learned Friend's authority upon that subject. I say it is a question of fact for the Jury to decide, and that the same maxim which has declared that Juries shall not interfere on questions of law, has made it also the duty of Judges not to arrogate to themselves the right of deciding on questions of fact.
If, Gentlemen, the scale should hang doubtfully in your minds as to the acts of this Prisoner, and his intention as connected with them; if, convinced that he has been implicated in an outrageous riot, you should be at a loss for reasonable and credible evidence to establish the heinous charge of High Treason, then you will have a just regard to his character as a humane and peaceable man, who for many years served with credit in the army, and still retained that loyalty which every soldier does and ought to feel towards his King. That character should avail him in the hour of trial, though so unfortunately betrayed by the miserable circumstances of the times into errors and violence, and turn the trembling balance in his favor. I trust, indeed, that your minds will retain no doubt upon the general question of the charge which has been advanced. I do most confidently anticipate, that when you calmly consider