Captain Philips of the 15th hussars, was next called. He was at that time an officer, stationed in the barracks within half a mile of the town of Nottingham. He says that on the 9th of June there was a good deal of bustle and confusion in the town; but he was not in the town himself, and therefore cannot speak to it from any local observation. He says, the military were sent for in consequence of what had happened, he supposes, in the town. They remained about a quarter of an hour, and then returned. Then he says, "The next morning, about half past six, I was called out; and I went with Mr. Rolleston and Mr. Mundy, with twenty men, in the direction of Pentridge. About half a mile before we got to Eastwood, I saw some men armed with pikes flying over fields in different direction, on both sides of the road. They were so far off we could not overtake them. We proceeded on through Eastwood, and between Eastwood and Langleymill we came up with a party of about sixty men. One man attempted to rally the others, and to make them stand, as if he had been the chief of them. Most of the men were armed with pikes and guns. They paid no attention to him; they fled over the hedges, and dispersed in all directions. We took about six-and-thirty of them prisoners. We found a considerable number of guns and pikes, which had been thrown away. Five or six of the men were found and taken with the arms in their hands." On his cross-examination, he says, "I was about sixty yards from them when I saw this person attempt to form them; I have been stationed at Nottingham about a month, and I am not quartered there at this time." The last witness who is called is the high sheriff of this county, who, in the ready and vigorous execution of the high duties with which he is intrusted, on receiving information of this, whatever it is to be termed, went in pursuit of the party; he saw what captain Philips has represented; and his evidence concludes with stating, that he saw the prisoner in a ditch, and took him into custody. This, gentlemen, is the whole of the evidence in support of the prosecution. After the counsel for the prisoner, and his witnesses had been heard, as it was my duty to do, I called upon the prisoner to ascertain if he had any thing to urge in his own defence; but all he has said consists in denying that the gun was cocked at the time that it was driven against the side of the witness Raynor; whose evidence I have read to this point. In effect therefore, he has left his defence to the powerful observations so ably urged by the learned counsel who have addressed you on his behalf. Some witnesses were then called for the prisoner, who speak not to the facts of the case for no testimony has been given to controvert or vary that of any of the witnesses in support of the prosecution, so that as far as these witnesses are deserving of credit, of which it is for you to judge, the evidence is all in one scale; but witnesses have beeen called to speak to the character of the prisoner, during a long course of time, as to sobriety, loyalty, and humanity in the discharge of the different duties of life, in the various situations in which he has been placed. The first witness called is William Taylor, who tells you that he is a farmer living at South-wingfield; that he has known the prisoner three and thirty years, and that he never knew anything of him but his being a true and loyal man, of humane disposition, till this affair hap pened. He says, "I know of his having been a soldier, and when he came back from being a soldier he was particularly loyal, and disagreed with any man who said anything against the government." John Burton was next called, who said he has known the prisoner ten or twelve years, during which time he never behaved otherwise than as a loyal subject, for anything that ever he knew or heard, till this happened. Then John Armstrong was called; he says that he is a framework-knitter in South-wingfield; that he has known the prisoner from a child, and that he has always borne a good character as a loyal, peaceable, and humane man. Such is the whole of the evidence on the one side and on the other, and on the result of which you are called upon in the discharge of a duty not incurred by choice, but cast upon you by the law, truly to pronounce, upon the guilt or innocence of the prisoner, at the bar. And now, gentlemen, I shall beg leave once more to call your attention to the law, and having briefly stated it in the outset, I will only repeat, that there is no legal doubt of difficulty belonging to this part of the case. The learned judges with whom I act upon this occasion, being of opinion with all their predecessors, whose doctrine and decisions have been referrred to, "that if there be an insurrection, by which is meant a large rising of the people, in order by force and violence to accomplish and avenge not any private objects of their own, not any private quarrels of their own, but to effectuate any general purpose, that is considered by the law as a levying of war;" and this you may take to be clearly the law of the land; nor is it the law of the land, as de pending upon the authority of any single judge; it pervades every page of the criminal law of England, as applicable to the crime of high treason; it may be traced back to antiquity, more or less remote; has been delivered down and is acted upon at the present day; but drawn as much into controversy as it has been on this occasion, I think it necessary, not in my own words, for I will not trust myself to any looseness of expression, when a rule of law is to be given affecting the life of man; but once more I will state, and more at length, the law as delivered by the greatest authorities; looking therefore, at what has been said by every one of the great authorities referred to, dence, nor am I aware that any has been even pointed at in observation. The question therefore being, whether this was not a rising for a general and public purpose, I know only of two ways, by one or both of which, intention and purpose can be ascertained. The one is, by the declarations of the parties concerned, for what is passing within their own breasts must be best known to themselves. If, therefore, you find many of those assembled in the hearing of the prisoner, and the prisoner himself to different persons, declaring and avowing that those measures were taken for the purpose and with the view of bringing about a general change in the government of the country, as far as declarations are proof of intention the evidence is decisive in this respect, and not encountered by any contradiction. Mr. Justice Foster says, "Every insurrection which in judgment of law," not every insurrection, which in point of fact, but "every insurrection which in judgement of law is intended against the person of the king, be it to dethrone or imprison him, or to oblige him to alter his measures of government, or to remove evil counsellors from about him, these risings all amount to levying war within the statute, whether attended with the pomp and circumstances of open war or not," That great and venerable judge, as eminent in his public as he was estimable in his private character, sir Matthew Hale, as on this day, the subject, and so justly, of brilliant panegyric, by the counsel for the prisoner, who has laboured so much to draw this doctrine into destruction, lays down the law in different terms, but to the same effect; he says, "If divers persons levy a force But there is yet another way of ascertaining of multitude of men, to pull down a particular purpose and intention; and this is, by the test inclosure, this is not a levying of war within the of conduct.-Declarations may be obscure in statute, but a great riot; but if they levy war themselves-imperfectly remembered witto pull down all inclosures," speaking of a nesses may speak without a strict and due regeneral intention, "or to expulse strangers, or gard to truth-but there are facts of a descripto remove counsellors, or against any statute, tion which cannot possibly deceive. The asas namely the statute of labourers, or for sembling in military array-the long line of enhancing salaries and wages, this is a levying march-breaking into different houses-taking war against the king;" and why?" because it away arms --men forced out-formed into line is generally against the king's laws, and the-pikes, swords, muskets-the word of comoffenders take upon them the reformation which subjects by gathering power ought not to do;" and therefore, gentlemen, the question for you will be whether this be or be not an attempt to make a change in the government, by the gathering of power either with or without arms, which lord Hale says, which Mr. Justice Foster repeats, and which all judges agree with them, in stating, is a levying of war against the king in his realm. Having now stated to you the law upon this subject, the first question for your consideration will be, was there or was there not any insurrection or rising for any purpose whatever? In point of form, I state this to you as the question; but in point of substance, it can be no question whatever. The fact of a rising, of an insurrection, is not disputed, nor was it possible that it should be. The previous meeting; the map produced; the returns called for; the assembling in different places; the firing of signals; the formation of pikes; the parading and proceeding in large bodies from different places to one point of union; the going from house to house; the breaking into the dwellings of many of the king's subjects, in the dead hour of the night, forcibly taking their arms, dragging their servants and children from their beds, forcing them into the ranks-all these circumstances form such proof of insurrection and rising, that upon this part of the case there can be no possibility whatever of doubt. What, then, is the next question? and which is equally for your consideration. With what intent did this rising take place? was it for a private or for a public purpose? Of any private purpose no trace appears upon the evi mand given and obeyed-the advance towards Nottingham, till in sight of, and almost in conflict with the king's troops-putting aside all the declarations proved, say, gentlemen, upon these facts singly or collectively, was this for a private or a public purpose? If you are satisfied that there was an insurrection—that it was for a purpose of a general nature, and that the purpose charged in the indictment, then the only remaining question will be, whether the prisoner by his conduct is involv ed. As to that, I have recapitulated the evidence which you had before heard, and I shall content myself now with merely directing your attention to the leading facts. And here you will recollect that many of the witnesses have been commended even by the counsel for the prisoner; that with the exception of two, not one is impeached; and that these two are attacked only by observation. But unfortunately even the declaration of purpose does not stand upon the testimony of those two witnesses alone: you have had other persons called, who have sworn to declarations by the prisoner himself, so far confirming the witnesses in question. When you find, therefore, the prisoner in person at a meeting previous to the rising, calling for returns of the arms from the different parishes; when you find him afterwards by the testimony of all, acting as second in command, parading, marching, drilling the men-at all the different houses-continuing with the assembled multitude from the beginning to the conclusion of the scene-then seen to come out of a ditch, and taken into custody after his companions had fled-attending to all these facts, it will be for you to say whether,, there being an insurrection, and for the general purpose, the prisoner was or was not concerned in it. On the whole of the case you have been truly told, that if you have any doubt, you ought to give the prisoner the benefit of that doubt, and acquit him; and to this I agree. But it must be a fair, and notwithstanding the observation made, it must be a reasonable doubt an honest doubt-such as you can reconcile with your consciences, and with the solemn obligation under which you are bound to deliver your verdict. You have been reminded that when this day shall have passed away never to return, and this scene shall have closed never again to open, it may happen to you at some future time to look back upon your conduct upon the present occasion; and you have been earnestly pressed to consider when in the chamber of sickness, on the bed of death, in the hour of approaching judgment, what reflections from that review and retrospect may arise. This appeal was fairly and properly made in favour of life; I do not wish to weaken it, nor would it become me, placed where I am, further to pursue this subject. I will therefore only say, that here and elsewhere-now and hereafter--in health and in sickness-throughout life and even in the hour of death-and in that state which is to follow; your best support and consolation here, looking back upon the result of the present inquiry your own justification hereafter, will be, a faithful discharge of the duty imposed upon you this day, by acting up to the sacred obligation under which you have become bound truly to decide according to the evidence to the best of your judgment and belief. Finally therefore, gentlemen, looking to the charge, to the evidence, to the observations made from every quarter, to the law as stated and explained, you will say whether you deem the prisoner guilty or not guilty. If you really think that notwithstanding the declarations proved, and the acts done, his purpose was not that which the indictment imputes; if of this you even entertain doubt, give the prisoner the benefit of that doubt, coupling with it the character he has received. But if unfortunately the case be too clear to admit of any doubt, you will discharge your duty without consideration of the consequences that may follow; confining your attention to your own duty, and declaring the prisoner to be guilty, if you are satisfied that he is proved to be so. Consider and decide. * Vide antè p. 1083. The jury retired at a quarter past three, and returned into court in a quarter of an hour, with a verdict, finding the prisoner guilty; and that he had no lands, &c. to their knowledge at the time of the offence committed. Lord Chief Baron Richards.-The court is very anxious to use all the expedition consistent nient to proceed now, or to adjourn until towith justice; whether it will be more convemorrow morning, must in some measure be left to you, gentlemen. Mr. Attorney General.-My lord, I am sure I am as anxious to save your lordships time, and to expedite the proceedings, as your lordships can possibly be. I do not know that your lordships will save a great deal of time by proceeding on one of the trials now; a portion of time to be sure will be saved by selecting the gentlemen of the jury; but only to do that, as your lordships know, would be in fact confining the gentlemen of the jury without any thing to exercise their judgment upon, so far as the trial is concerned. I doubt, myself, whether your lordships would very much expedite the proceeding. Lord Chief Baron Richards.-I feel great doubt whether we should expedite. Mr. Attorney General.-When I say that, I am quite in your lordships judgment. Lord Chief Baron Richards.-Does any thing occur to you, Mr. Cross? Mr. Cross. My lord, we are so sensible of the attention of your lordships, that we would wish to leave this entirely in the discretion of the Court, as a matter in which we feel no interest. Mr. Justice Dallas.-The great objection will be, that the jury sworn will be locked up all night, with nothing upon which to exercise their judgment. I am only anxious that there should be no idea that time is wasted. Mr. Justice Abbott.-If we impanel a jury now, the consequence may be, that the jury will be impanelled two nights; whereas, if we adjourn till to-morrow morning, in all probability the trial will be over next day; we should be sorry to confine the jury more than is absolutely necessary. Lord Chief Baron Richards.-Perhaps we may as well adjourn to to-morrow morning. Adjourned to eight o'clock to-morrow morning. 696. The Trial of ISAAC LUDLAM the Elder, for High Treason; before the Court holden under a Special Commission at Derby, on Wednesday and Thursday the 22nd and 23rd days of October: 57 GEORGE III. A. D. 1817.* Wednesday, 22nd October, 1817. Lord Chief Baron Richards.-Mr. Solicitor General, and Mr. Denman, is there any objection to the jury being called from No. 84, to which the call has already proceeded? Mr. Denman.-I have none at all, my lord. The Jurors returned by the Sheriff were called over. Francis Agard, merchant, not a freeholder of the county of Derby to the amount of 10/. a year. Mark Porter the younger, roper, challenged by the prisoner. Joseph Garner, farmer, excused on account of illness. George Poyser, farmer, challenged by the prisoner. Abraham Harding Beale, woolstapler, challenged by the crown. James Sutton, gentleman, challenged by the prisoner. James Soresby, gentleman, challenged by the prisoner. Thomas Moore, farmer, challenged by the prisoner. Philip Waterfield, gentleman, sworn. James Osborne, farmer, challenged by the prisoner. John Edensor, farmer, challenged by the prisoner. William Hayward, farmer, challenged by the prisoner. Benjamin Stone, the elder, farmer, not properly described in the panel. Anthony Allsopp, bar master, sworn. James Northage James, gentleman, challenged by the prisoner. John Blackwall, esq. excused on account of illness. Robert Blackwall, mercer, challenged by the prisoner. Thomas Lomas, baker, challenged by the crown. John Cox, farmer, challenged by the crown. John Clarke Ward, maltster, challenged by the prisoner. William Wayte, farmer, challenged by the prisoner. prisoner. Richard Marbrow, farmer, challenged by the Henry Wayte, farmer, sworn. principle is sanctioned and recommended by the opinion of the learned judges: for in all cases-whether they be in the trial of the civil rights of our fellow-subjects, or in those more important trials, deciding whether our fellowsubjects, or any of them, have been guilty of criminal offences against the laws-it is from the constitutional judges of the land-from those who are placed in office for the purpose of executing these high and sacred functions, -from those who have passed their lives in the consideration, in the investigation and in the decision of matters of law-that juries are to receive directions in point of law, and not from the counsel discussing the civil rights of parties, or conducting prosecutions, or defending pri soners; it is only for the purpose of elucidating and applying the facts more directly to your consideration, that I take the liberty of stating to you my humble conceptions of the law. The statute upon which the first charge in this indictment is laid, was passed in the reign of king Edward the third; by the recital of which it appears that there had been different opinions of judges and of others, what species of conduct did or did not amount to high trea The jury were charged with the prisoner in son. For the purpose of doing that which is the usual form. most important for the safety of the community The Indictment was opened by Mr. Balguy. and of each individual belonging to it-for the purpose of reducing as far as by any general MR. ATTORNEY GENERAL.-Gentle-enactment you can reduce any species of crime men of the Jury; you have heard from my friend, Mr. Lowndes, who read this indictment, and from my learned friend who has also stated its contents to you, that the charge against the prisoner at the bar is that of having been guilty of high treason; and that the species of treason of which he is accused is the having levied war against the king, as charged in the first count of the indictment; and as charged in the two others, of having conspired to levy war against the king; in one of them for the purpose of deposing the king, and in the other, for the purpose of compelling the king to change his measures. The first charge in this indictment, that of levying war, is the one to which I wish principally to direct your attention; because it appears to me, that if the facts I am about to state to you shall be made out by evidence (and if they are not made out by evidence, of course my statement will go for nothing; for you are to decide this cause according to the evidence that you shall hear upon oath) the prisoner at the bar, in common with other persons, has been guilty of the offence. After what has passed in this court, and the law having been laid down by the learned judges, perhaps it might be considered a waste of time in me to enter at length into a discussion of the law in this case; but I will shortly state to you my notions of the law, knowing that if I am mistaken in the statement, I shall be corrected by the learned judges who are presiding upon this trial; and you will recollect, that I do not desire you to adopt any one principle that I shall lay down in the short address I have to make to you, unless that VOL. XXXII. to a definite description and to certainty, this statute stated what should be high treason; it begins (and I merely mention that as introductory to the rest) by declaring (for the greater part of this statute has always struck me as rather declaratory of what was the principle of the common law, than any new enactment of the law upon the subject), that to compass and imagine, that is to intend, the death of the king, is high treason; that is not the species of treason about which you are inquiring now. It then enumerates certain other acts, such as compassing the death of the heir apparent, and violating the companion, that is, the wife of the king. Then it states, " or levy war against our lord the king in his realm;" that is the general description of the statute, but what does or does not amount to levying war must necessarily be a question of law; whether the facts that have taken place in the particular case, into which you or any gentlemen upon other occasions placed in your situation may be inquiring, bring the parties accused within what by the rule of law is a levying of war, is a question of fact for the consideration of the jury: but what does constitute a levying of war, is a question of law which must depend upon a general rule; for if it does not, so far from our having any rule of conduct by which the subjects of this country can square their actions, we are left in the most perfect state of uncertainty, and that statute of Edward the third might as well not have been passed. You twelve gentlemen, in case you are to lay down the rule of law, and to put a construction upon this statute, may be of one opinion, twelve 4 D |