ously and traitorously assembled and gathered together against our said lord the king most wickedly maliciously and traitorously did levy and make war against our said lord the king and being so assembled together arrayed and armed against our said lord the king as aforesaid did then and there with great force and violence parade and march in an hostile manner through divers public streets and highways and did then and there maliciously and traitorously attempt and endeavour by force and arms to subvert and destroy the government and constitution of this realm as by law established and to deprive and depose our said lord the king of and from the style honor and kingly name of the imperial crown of this realm In contempt of our said lord the king and his laws to the evil example of all others contrary to the duty of the allegiance of them the said Arthur Thistlewood James Watson the elder James Watson the younger Thomas Preston and John Hooper against the form of the statute in such case made and provided and against the peace of our said lord the king his crown and dignity. [Fourth Count.]-And the jurors aforesaid upon their oath aforesaid do further present That the said Arthur Thistlewood James Watson the elder James Watson the younger Thomas Preston and John Hooper 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 said first day of November in the fifty-seventh 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 James Clerkenwell in the said 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 levy war against our said lord the king within this realm in order by force and constraint to compel him to change his measures and counsels and the said lastmentioned 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-[The Indictment then states the same fourteen overt acts charged in the first and second counts.] On Monday, the 5th of May, Mr. Litchfield, solicitor for the Treasury, delivered to each of the prisoners a copy of the indictment, a list of the jurors returned by the sheriff, and a list of the witnesses to be produced by the crown, for proving the said indictment. On Saturday, the 17th of May, Arthur Thistlewood, James Watson the elder, Thomas Preston, and John Hooper, were brought from the tower to the court of King's-Bench, under a writ of Habeas Corpora, and set to the bar. The return of the marquess of Hastings, as governor of the tower, was read and filed. The prisoners were informed, that if they wished to have counsel assigned to them, the Court would assign them upon their desire. Each of the prisoners prayed to have counsel assigned, but requested two or three days for consideration, not having yet made up their minds. They were informed that they might prefer their request either to the Court, or to a judge at chambers, who was authorized by the act of parliament, to assign them counsel. James Watson having requested to be informed, whether if counsel were assigned to him he should be allowed to speak in his own defence, was informed by the Court, that he would not be restrained from addressing to the jury what might be expedient. The prisoners were arraigned and severally pleaded Not Guilty. They were then remanded, having being informed that their trial would take place on the 9th of June. At the request of the prisoners, the following gentlemen were assigned as their counsel : For Arthur Thistlewood. Mr. Wetherell and Mr. Sergeant Copley. For James Watson. Mr. Wetherell and Mr. Sergeant Copley. Mr. Holt and Mr. Starkie. COURT OF KING'S BENCH, The Right Hon. Lord Ellenborough, C. J. Counsel for the Crown. Mr. Attorney General [Sir Samuel Shepherd, afterwards Lord Chief Baron of the Exchequer of Scotland.] It appears from a conversation in the House of Commons, that the list of witnesses contained 240 names; Vide 36 Hansard's Parl. Deb. 882. Mr. James Harmer, Hatton Garden. The Court being opened, Arthur Thistlewood, James Watson the elder, Thomas Preston and John Hooper, were set to the bar. Mr. Attorney General.-My Lord, my learned friend, Mr. Wetherell, who is counsel for some of the prisoners has intimated to me, that they intend to sever their challenges, in consequence of which, on the part of the crown, I shall desire to have them tried separately. Lord Ellenborough.-That you have a right to do. Mr. Attorney General.-It is necessary that I should state to your lordship, which of the prisoners I shall first bring to trial. Mr. James Watson the elder, is the prisoner to be first tried. It may be important in the course of the trial, that the other prisoners should be in Court, for the purpose of being identified. The jurors returned by the Sheriff were called over, when the following were excused. William Hughes, Truss-maker, on account of illness. Samuel Barter, esq. and Builder, on account of illness. William Winchester, Gentleman, on account of illness. Edward Wilson, Upholsterer, not having received the summons, in consequence of absence. John Burnthwaite, Linen-draper, on account of illness. Francis Keysall, Cheesemonger, not having received the summons. Thomas Adcock Grindall, Distiller, on account of illness. Peter Bardin, Painter and Glazier, on account of illness. William Hale, Weaver, on account of illness. William Pryor, Leather-seller, on account of illness. Thomas Armitage, esq. on account of illness. John Henry Wackerbarth, esq. and Sugarbaker, on account of illness. Thomas Thornton, senior, Gentleman, on account of illness. Thomas Buckland, Gentleman, on account of illness. William Jackson, Whitesmith, on account of illness. Thomas Morton, esq. and Brewer, having pleaded his exemption as an Elder Brother of the Trinity House. The List having been gone through, the Defaulters were called over. John Franklin, esq. fined 201. William Bentham, esq. and Conveyancer, fined 201. James Catforth, Gentleman, excused on account of absence from home, his house being under repair. Rudolph Ackerman, Printseller, fined 201. John Smith, Undertaker, fined 20/. The jurors returned by the sheriff and who had answered to their names, were again called over. Thomas Mitchelson, Surveyor, sworn.* Thomas Allman, Bookseller, sworn. Robert Durham, Carpenter, challenged by the crown. John Turner, Jeweller, challenged by the prisoner. Robert Norton, Button-maker, sworn. Daniel Wilshen, esq. and Gold-beater, pleaded an exemption as a commissioner of the property-tax. He was directed to stand by for the present. Thomas Boot, senior, Grocer, challenged by the crown. John Tomlinson, Woollen-draper, sworn. Peter Richardson, esq. and Lottery-office keeper, sworn. Samuel Edwards Wine-merchant, not a freeholder of the county of Middlesex to the amount of 10l. a year. &c. Henry Underwood, Cutler, not a freeholder, Charles Eady, Water-gilder, challenged by the prisoner. Thomas Hacker, Timber-merchant, challenged by the crown. George Allen, Brass founder, challenged by the prisoner. Daniel Gardner, Hatter, challenged by the Edward Helling, Painter, not a Freeholder, &c. Thomas Bean, Butcher, not a Freeholder, &c. Thomas Cordell, Gentleman, challenged by the prisoner. Charles Cor, Army Agent, excused on account of age. Thomas Wilkes Barker, Silversmith, sworn. George Woodward, Turner, challenged by the prisoner. Richard Jaques, Auctioneer, excused on account of deafness. Thomas Rich, Hatter, not a freeholder, &c. Richard Flemming, esq. and Surveyor, excused on account of age. John Christmas, esq. and Painter, challenged by the prisoner. William Knight, esq. not a freeholder, &c. Bowman Atkinson, Gentleman, not a freeholder, &c. James Heath, Engraver, fined 201. Samuel Baker, Pork-butcher, challenged by the prisoner. * Vide page 24. Joseph Mail, Stone Mason, excused on account of deafness. William Thomas Miles, Grocer, not a freeholder, &c. Frederick Holbroke, Gentleman, fined 207. John Parker, Woollen-draper, challenged by the prisoner. Henry Buckley, Floor-cloth manufacturer, excused on account of illness. Abraham Walker, Mercer, sworn.* Mr. Mitchelson. My Lord, I am not a freeholder; I was not asked the question: the question was not put to me. Mr. Wetherell.-I do not object to the gentleman. Lord Ellenborough.-By the first of William and Mary, it is expressly provided that they ought to be freeholders. Mr. Doyle.-I am in the same situation; I am not a freeholder; I was not asked the question. Lord Ellenborough.-No, you were not. Mr. Mitchelson and Mr. Doyle withdrew from the box. William Robert Burgess, Oilman, challenged by the prisoner. Mr. Walker.-My Lord the question was not put to me; I am not a freeholder.* Lord Ellenborough.-You swear you are not a freeholder? James Halford, Navy Agent, not a freeholder, &c. Samuel Page, Builder, challenged by the prisoner. John Spicer, Brandy Merchant, not properly described in the panel. Richard Miller, Tailor, not a freeholder, &c. James Little, Upholsterer, excused on account of ill-health. John Thompson, esq. and Auctioneer, challenged by the prisoner. William Porden, esq. and Architect, not a freeholder, &c. William Reynolds, Bookseller, not a freeholder, &c. James Rumble, Butcher, not a freeholder, &c. Nicholas Cade, Carpenter, excused on account of ill health. Francis Hager, Grocer, excused, being one of the people called Quakers. John Eaton, Brandy Merchant, not a freeholder, &c. John Heath, esq. and Merchant, challenged by the prisoner. Charles Stoner, Gentleman, not a freeholder, &c. Richard Hosman Soly, esq. • Vide infrà”. Mr. Solly. My lord, I attend in consequence of having received a summons, but my name is not rightly spelt in the summons; it should be spelt with two l's, and the christian name should be Hors instead of Hos. Lord Ellenborough.-Richard is right? Joseph West, Grocer, not a freeholder, &c. Robert Conyers, Ironmonger, and Dealer in Marine Stores, challenged by the crown. Thomas Titterton, Coach-maker, challenged by the crown. William Hackblock, Currier, sworn. Lord Ellenborough.-The Horsman has the r prisoner. left out? Mr. Solly.-Yes my lord. Lord Ellenborough.—And Solly has two l's? Mr. Solly.-Yes. Lord Ellenborough.-There is idem sonans: -there is no other person residing in that street, who has that name? Mr. Solly. There is Mr. Soley, not in that street, but in the neighbourhood. Lord Ellenborough.-Not in Great Ormond street? Mr. Solly-No; I apprehend there is also another objection; that being called to the bar, and continuing a member of Lincoln's Inn, Í am not eligible. Mr. Justice Bayley.—You do not practise, do you? Mr. Solly.-I am entitled to practise; I am able to practise. Lord Ellenborough.-Do you wear your gown and come into court? Mr. Solly. Not often, my lord, certainly; but I am entitled to do it. Lord Ellenborough.-I believe that merely being at the bar will not do. Mr. Solly.-I understood, provided I kept my name on Lincoln's Inn, and consequently was entitled to practise, that was sufficient; but of course your lordships are the best judges of that. Mr. Wetherell.-I have no objection to Mr. Solly. Challenged by the crown. James Peak, Bricklayer, challenged by the crown. John Best, Gentleman and Coal Merchant, challenged by the prisoner. John Booth, Gentleman and Surveyor, challenged by the prisoner. Samuel Homer, Appraiser, challenged by the crown. Samuel Roberts, Victualler, challenged by the crown. Richard Perkins, Shoe-maker, sworn. Edward Powell, Grocer, challenged by the prisoner. Charles Baxter, Porkman, challenged by the Crown. Henry Jackson, Boot and Shoe-maker, challenged by the prisoner. William Sabine, Carpenter, not properly described in the panel. John Pittard, Paper Manufacturer, challenged by the crown. Thomas Gable, Weaver, not a freeholder, &c. John Edger, Weaver, challenged by the crown. Evan Jones, Grocer, challenged by the crown. Robert Young, esq. and Bricklayer, challenged by the prisoner. John Ham, Weaver, not a freeholder, &c. Samuel Knight, esq. and Druggist, sworn. Thomas Allman, Robert Norton, John Tomlinson, Peter Richardson, John Bryant. Samuel Kell, THE JURY. Richard Ramsden, The Jury were charged with the prisoner in the usual form. The Indictment was opened by Mr. Shepherd. Mr. Attorney-General.-May it please your Lordships.-Gentlemen of the jury you are assembled in that box to perform one of the most important functions that can devolve upon any men in a state of civilization, that of deciding upon the guilt or innocence of one of your fellow subjects, charged with the crime of high treason, the highest crime that can be committed against society by man; because it tends to the perfect disorganization of society, and to the utter destruction of every comfort that can belong to man, under the administration of the law. On the one hand, you will, I am sure, be extremely desirous to protect the constitu tion of the country under which you live, against any traitorous attempts that may be made to subvert it; and on the other, you will be equally desirous, that when such a charge is made, before you come to the conclusion of guilt, it should be established by strong and convincing evidence. I think when I shall have stated and proved the case that I have to lay before you, you cannot entertain any doubt that the treason charged is proved, not only as laid in the first, second, third, or fourth counts, but in truth, is proved as laid in each and in all. The charges that are made upon this indictment are four-first, for compassing and imagining the death of the king: secondly, for compassing and imagining to depose the king: thirdly, for levying war: and fourthly, for conspiring to levy war, for the purpose of compelling the king to change his measures. The first and the third counts are founded upon the statute of king Edward the third, which in those days stated what should amount to high treason: the second and the fourth counts are founded upon a later statute, the 36th of the present king, cap. 7, which, though it contains enactments peculiar to itself, and dif ferent in terms from the statute of Edward 3, yet does not in my mind very materially alter the law of treason, except in one respect; because there is nothing, as it appears to me, stated in that statute of the 36 of the king, as far as relates to this case, which, though stated as treason-as substantive treason-would not, if committed, have been an overt act, manifesting such treasons as are declared in the statute of Edward the third. I will state to you very shortly the enactments of the 25 of Edward 3, cap. 2, which describes treason, I mean, as far as it relates to this question, not taking up their lordships' time or yours, by referring to the other parts of the statute when a man doth compass or imagine the death of our lord the king, or of our lady his queen, or of their eldest son and heir; or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving them aid and comfort in the realm or elsewhere, and thereof be probably attainted of open deed-" Mr. Wetherell.—Provably attainted. Mr. Attorney-General.-Does my learned friend think that I am making any distinction between probably and provably? or that I am asking you to decide upon the guilt or innocence of men on mere probability? God forbid! I will take the word as he states it-provably, that is to say this, if a man do compass and imagine the death of the king, and has manifested that compassing and imagination by overt acts, proved by such evidence as the law of England requires for proof, then he is guilty of high treason. The treason therefore described in the first branch of this statute is the compassing and imagining the death of the king-compassing does not mean, as in the ordinary and common acceptation of the term, effecting; we sometimes say, I compass such an object, but this means intending and imagining-having in the mind the intention of the death of the king, and then, by overt acts, taking means to carry into effect that intention and imagination of the mind. That the levying war, or the actual endeavouring, by force of arms, to subvert the government and constitution of the country, is an overt act to manifest the compassing the death of the king-it is impossible for any one to deny; for whether the person who does that has in his mind the contemplation of the actual death of the person, who holds the sacred character of sovereign of the country, or not, if his purpose and object be to subvert and destroy the constitution of the country of which the king is sovereign; the necessary or the natural consequences which must necessarily arise from that, of thereby destroying the king, amounts, in the eye of the law and in the eye of common sense, to a compassing and imagining his death, for though without considering or contemplating the actual natural death (when I say natural death, I mean by violent means) of the king, so as to be treason in that point of view, against the actual person by way of as sassination, still it is treason, as against his majesty the king, as the sovereign of the realm, and if the object be that of subverting the law and the constitution of the country, and manifested by overt acts, those overt acts are overt acts manifesting the compassing the death, inasmuch as they are the means taken to effectuate that object. In this point of view acts may be done, which would not amount to that second substantive treason, the levying war for instance, if men conspire and consult together to levy war, however it was made out that they had conspired and consulted together so to do, that would not amount to that second branch of treason, the actual levying war, but still the conspiring and the consulting to levy war would be an overt act-an open deed, one of the means whereby they would intend to effectuate the object of the death of the king. The first count therefore of the indictment puts this charge as amounting to treason, in compassing the death of the king, and it then states a great variety of overt acts, every one of which (and I might say, any one of which) if made out to have been done with the object, and for the purpose of subverting the constitution of the country, and thereby dethroning (for it must amount to that) the king, would be each of them an overt act which would make out the charge; but though each of those overt acts, if standing simply by itself, would be such an overt act, yet standing simply and singly by itself and alone perhaps, it might be more difficult to draw the conclusion, that those acts were done with that object; but when they are taken and combined together, as giving you, upon this record, the history of the conduct of this defendant, which will be detailed to you by the witnesses, in a way, of the truth of which you cannot doubt, then it will appear, that here has been a constant series of progressive acts and transactions ultimately to effectuate that purpose, and that all those previous acts and consultations at last led to the ultimate act of levying war, for the purpose of effectuating their objects: for you will observe, that upon this indictment the overt acts that are charged are these; consulting to devise plans and means to subvert the constitution and depose the king; consulting to levy war and subvert the constitution; these, though acts, are acts of consultation and conspiracy— conspiring, that is, agreeing together to attack the Bank, and further conspiring to seduce soldiers and others, ordering pike heads, arms, that is to say, providing arms and ammunition, conspiring to burn the king's barracks, for the purpose, as it will appear to you, of destroying the soldiers who inhabited those barracks, in order to prevent any resistance from the king's forces in their war, when it should ultimately break out; hiring a house for the reception of combustibles for that purpose. Then comes the next act of conspiring to procure meetings in Spa Fields-I will here make an observation, though it will present itself perhaps, when I come to detail that part |