COURT OF KING'S-BENCH,

Monday, 28th April, 1817. THE Sheriff delivered in the panel of the Grand Jury, which was called over, and the following gentlemen were sworn:

THE GRAND JURY.

George Read, esq. (Foreman.)

H. Hare Townsend,

Patrick Byrne,

Robert Wilkinson, Barthol. Barnewall, John Wright,

Peter Campbell, John Jackson, William Palmer, Nathaniel Suell, Life Dacre, Charles Pole,

Thomas Reynolds,‡
John Webb Weston,
William Plenderleath,
Henry Usbourne,
John Cotton,
William Walter,
George Dorrien,
William Evans,
Robert Stone,
George Knox,

G. Musgrave,-esqrs.
Mr. Justice Bayley.-Gentlemen of the
Grand Jury:-Of the general nature of

*S. C. 2 Stark. N. P. C. 116.

+ See the Report of " the Lords Committees appointed a Secret Committee to inquire into certain meetings and combinations endangering the public tranquillity."-35 Hans. Parl. Deb. 411. See also the Debates in the Lords on the consequent introduction of a Bill to suspend the Habeas Corpus act, ibid. pp. 551, 825, and on certain petitions from Thomas Cleary; ibid. 473, 531. See too the proceedings and Debates in the House of Commons, ibid. 438, 589, 643, 708, 766, 783, 795, and a Petition from Henry Hunt to the House of Lords, ibid. 546.

See in Vol. vi of this work the trials of Mac Cann, Byrne, and Bond. See also 36 Hans. Parl. Deb. 971, 1020, 1048, 1069, 1244, 1390, 1403, 1409, 1414, & 1417.

VOL. XXXII.

B

your duty I have no doubt you are all well aware: it is to examine into each particular charge which may be brought before you, and if you find the charge substantiated by such evidence as you believe, to present the bill containing such charge.

But I understand there is likely to be brought under your consideration a charge different from those which ordinarily occupy the attention of grand juries in this place-a charge of the highest crime which can be committed-high treason. Of the particular evidence by which that charge is to be supported I am (as I ought to be) as ignorant as you are; I know no part of that evidence; but it is my duty to point out to you before hand, as accurately as I can, what is the law applicable to the subject, so that you may be able to refer that law to the evidence which may be brought under your consideration, and (when that evidence is adduced) to decide conscientiously and rightly, between the public on the one hand, and the individuals who are the subjects of the charge on the other.

This charge will, I believe, contain four different descriptions of treason; that of compassing and imagining the king's death -that of compassing and imagining to depose the king-that of levying war against the king-and that of conspiring to levy war to force the Crown to change its measures, and its councils.

Two of these, namely, the first and the third, are made treasons by an act of parliament, passed so long ago as the reign of Edward the Third; the second and the fourth are made so by an act of parliament of the present reign, namely, the 36th of his present majesty, chapter 7. I mention the chapter, in order that, if ne

cessary, you may, in the course of your duty, have an opportunity to refer to it.

The offence of compassing and imagining either the king's death or his removal, is an act of the mind only, and unless that is further evinced and indicated, by some act moving towards one of those ends, namely, the death or deposing of the king, the charge would not be sustained, and therefore, upon those counts you must be convinced, not merely that such an idea entered into the man's mind, but that he acted upon that compassing and imagination. The law considers the offence of compassing and imagining the king's death or deposition, not to be confined to those cases in which it enters into the mind of the person against whom the charge is made, actually to destroy the. king, or actually to depose the king; but if his object is of such a nature, that in the means taken to accomplish that object, the king's life, or safety, or continuance upon the throne, is likely to be brought into hazard, the law considers the entertaining and acting upon an object of that kind, as necessarily contemplating what, if the treason were successful, would probably be its ultimate effect, namely, the death or deposition of the king.-Every man is considered as having in his mind whatever is the probable consequence of the means he is adopting.

Levying war against the Crown is considered as an act showing in the person who is guilty of it, a compassing and imagining of the king's death; for a man who will be wicked enough to levy war against the Crown, would not (if he were to be successful) be likely to stop, till he had destroyed, or at least removed from the throne, that person whose duty it would be, to punish the treason, if he were permitted to live, and continued in the possession of his power; and therefore the act of levying war is considered evidence, or (as I shall have occasion to explain to you by and by) an overt act of compassing and imagining the king's death, and an overt act of compassing and imagining the deposal of the king.

It is very necessary that you should be apprized before hand what the law considers as a levying of war. It is not absolutely necessary in order to constitute that offence, that there should be a regular organized force, or that the persons should be in military array. If there is an insurrection, that is, a large rising of people, in order by force and violence to accomplish or avenge, not any private objects of their own, not any private quarrels of their own, but to effectuate any general public purpose, that is considered by the law as a levying of war; there must be an insurrection, force must accompany that insurrection, and it must be for an object

of a general nature; but if all these circumstances concur, that is quite sufficient to constitute the offence of levying war.

That point has been under the consideration of the judges at many different periods, and has always received from them the same determination. One of the early cases (which I mention by way of illustrating the principle, for it will be an important feature, probably, under your consideration) was of this description:-There was a general rising (a rising of about 5,000 people), with a view not to do any very wicked act, but to put down all brothels, or houses of ill fame; that was not to gratify any private revenge of those particular persons who were concerned in it, it was to produce in that respect a general reform. The judges were of opinion that it was not for individuals to take upon themselves by force to effectuate any object of a general description, and therefore that was considered as an act of high treason; the insurrection for that purpose was held an act of levying war.*

There was another case in which the parties met in large numbers, and with a considerable degree of force, to pull down all Meeting-houses-the Meeting houses of those persons who differed in opinion from the regular established Church. The judges who had that case under their consideration, in the reign of queen Anne, were all of opinion, that inasmuch as it was for a general purpose, it amounted to the offence of levying war.

In our own times, in lord George Gordon's case, there was an insurrection for the purpose of putting down Popery; there was a very large insurrection with a view to that object; to support, or at least apparently to support, our own religious establishment, and to put down all persons of the Roman Catholic profession; and the judges there, had no doubt or difficulty, that a rising for that general purpose was an act of levying war against the Crown.

The text-writers upon this subject, sir Matthew Hale, and Mr. Justice Foster, who coolly in their closets considered these particular topics, agree in the same description of the offence, and therefore what I am now stating to you, is not only the deliberate determination of judges who occasionally had to decide, but of those judges also who were writing for posterity. If, therefore, in that which shall come before you, you shall find that there was a rising accompanied with circumstances

of force, and you shall be satisfied that the persons who so rose, or any of them, had it in their contemplation to effect by force and violence, any general reform of any description whatever, or that they had any other general public purpose, it will amount to the offence of levying war.

Another of the charges is a conspiring to levy war, with a view to force the Crown to alter its measures or its councils; that supposes that there has not been such an insurrection with such force and violence as amounts to the actual levying of war, but merely supposes that certain persons have met together, and that the result of their deliberation and determination has been, their endeavour to effectuate such a rising, and to effectuate that rising for the purpose which the bill will charge, namely, the offence of compelling his majesty by force to change his measures and his councils. Upon that charge you must be satisfied, first, that a conspiracy existed, and, secondly, that it had for its object the purpose charged.

In order to support those different acts the law expects that what are called the overt acts shall, with reference to most of these treasons, be stated in the body of the bill of indictment to be preferred. These overt acts do not constitute the treason; that is comprised in the compassing the king's death, in the compassing the deposal of the king, in the conspiring to levy war, or in the actual levying of war; but these which are called overt acts are necessarily introduced into the indictment, and are the evidence by which the charge is afterwards to be supported; and they are introduced into the indictment, that each person against whom the charge is made may have the opportunity of knowing before hand, what is the evidence by which he is to be affected, in order that he may prepare himself to meet that evidence.

The overt acts will require careful consideration at your hands; there will probably be many applicable to each charge; if upon the investigation you shall be fully satisfied of the truth of any one overt act, and shall be satisfied also that the other parts of the charge are effectually made out, it will be your duty to find the bill. It is not necessary that every overt act charged in the indictment, should afterwards be established by evidence, but it will be right that you should examine into each overt act which is charged in the indictment; and that you should not stop your inquiry as soon as you are satisfied with evidence applicable to any one only, because each overt act imports upon the face of the indictment to be found by you, and, therefore, you ought not to return a bill, stating a variety of overt acts, unless you are satisfied with respect to each and

every of those acts. What I should recommend to you, therefore, in going through the bill is this: if all the overt acts shall be proved by evidence to your satisfaction, then you will properly return the bill with all those overt acts; but if it should turn out that some of the overt acts are established, but that the evidence fails as to the rest, then it will be right on your part, either to strike out from the bill such of the overt acts as are not proved to your satisfaction, or to express distinctly in your finding, that such overt acts are not found.

When all or any of the overt acts are established, you may properly put to yourselves this question:-were those acts, all or any of them, done in order to accomplish any such general purpose as amounts in law to the offence of levying war? If you are satisfied that they were, it will be your duty to find the bill upon those overt acts.

It will be necessary in order to give you jurisdiction, that some one at least of those overt acts should have taken place in the county of Middlesex; you know that you have jurisdiction with respect to such offences only as arise within your own county, but if you are satisfied that any one of these overt acts has occurred in the county of Middlesex, it is your duty also to inquire into other overt acts, wherever they may have been committed, whether in London, or in Surrey, or elsewhere. If any one of the overt acts has occurred in the county of Middlesex, that makes it your duty to inquire into all the other overt acts wherever committed.

It is necessary that a charge of treason should be supported by two witnesses; if there were one witness alone, the bill could not be found. This shows the attention the law gives to charges of this high enormity. But it is not necessary that you should have two witnesses to the same overt act: if there is one witness to one overt act, and another witness to another overt act of the same treason, that will be quite sufficient to warrant you in finding the bill, and will be a compliance with that requisition which says, there shall be two witnesses, in order to make out a charge of treason; but if treasons of divers heads or kinds are charged in the indictment, one witness to an overt act of one of those treasons, and another witness to an overt act of another of them, would not be sufficient.

If you shall be satisfied from the general nature of the evidence, that the charge of treason is effectually made out and rests somewhere, then it will become your duty to consider the case as it applies to each of the different persons who are the subjects of the charge. The bill probably will be against more than one person.

Treason differs from felony in this :-in felony there are accessaries; in treason there are none: what would make an accessary in felony, makes a principal in treason. He who plans the thing, or who devises the means by which it is to be effected, or draws in others to co-operate, or does any other act preparatory to the execution of the thing proposed, is as much a principal as he who executes that thing and provided a man once comes into the common purpose and design, every previous act with a view to that purpose and design, and every subsequent act, is as much his act, as if he had done it himself. If, therefore, you are satisfied that any of these persons concurred in planning the thing, concurred in inciting others to engage in it, or engaged in it at a subsequent period after it had been planned and devised by others, but came into it for the purpose of carrying it into effect; provided you shall find that they all had the same common purpose and design, no matter when any one person entered into that common purpose or design, every one who did enter into it, is in law a party to every act which had been before done by the others, and a party to every act which might be afterwards done by any of the others; and therefore what you will have to consider with reference to each person will be this :-did such person at any period of time join in this common purpose? if he did-whether he were present at any particular meeting or not-whether he were present at the time when the rising took place or not-if he were party to the common purpose, that would make him equally guilty, as if he had been actually present at every one of the acts and deliberations which will be brought under your consideration.

I omitted to state to you, that amongst the overt acts you will probably find conspiring will be one of the subjects charged, and consulting another. In order to support these, it is not absolutely necessary that you should have positive evidence from persons who heard them consult, or from persons who heard them conspire, or even that you should have evidence of an actual meeting for that purpose, if you shall find that there was a plan, and you shall be satisfied from what was done, that there must have been previous consultation and conspiracy, either by the persons who are the objects of the charge, cr by persons engaged with them in the same common purpose and design, that will justify your finding the conspiracy and consultation.

I have endeavoured as shortly and as clearly as I can, to suggest to you such considerations as may be material in directing your judgments in the discharge of this important duty; it is very im

portant on the one hand to the public, if treason has existed, that that treason should be developed, and that the persons who have been concerned in it should be brought under trial: and on the other hand, it is a very heavy charge; you will be cautious, and will give to the case the fullest and fairest investigation; and you will not return a bill against the persons charged, unless the evidence produces satisfaction to your minds, that they are guilty of some or all of the charges which shall be brought before you against them.

Gentlemen, these are the observations which it occurs to me to make if in the discharge of your duty any material difficulty should arise, I shall be very glad to give you any assistance in my power.

On Tuesday the 29th April, the grand jury returned a true bill of indictment for high treason, against Arthur Thistlewood, James Watson the elder, James Watson the younger, Thomas Preston, and John Hooper: not a true bill against John Keenes.

Mr. Attorney General.-In consequence of the bill of indictment which the grand jury have now returned to your lordships, it becomes my duty to move, that the sheriff of Middlesex may be directed to deliver to Mr. Litchfield, the solicitor for the treasury, a list of a proper number of persons capable of serving on juries, in order that that list may be copied, and a copy delivered to each of the persons against whom this bill of indictment is found.

Lord Ellenborough.—Be it so.

Mr. Attorney-General.-It may be proper for me to take this opportunity of stating to your lordships, that there has been nothing which I, and I may say, every person connected with the duty of prosecuting this offence, have had more at heart, than to bring it to the earliest possible examination.