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witness ; but upon being asked, what was the circumftanos from which he inferred, that Mr. Fergusson's demeanour was quite the contrary ? he says, he complained of the Bow-street Officers' coming forward.-Now, Mr. Fergusson must have known them to be Bow-ftreet officers, because he was present when they were examined ; and being a gentleman who wears the robe that I wear, he could not but understand, that they were not to be disturbed, because they were officers.--The great proof of his demeanour then being quite the contrary, is, that he makes a complaint of these persons ftanding between the Prisoner and the Jury ; whether the fact was fo, or not, I do not know.-Mr.Garrow fays, he apprehends, from the state of the Court, it could not be at that period of the trial. Then what is the answer to that? I will put it in plain intelligible words :- If Mr. Fergusson had been misled, by reading the fta. tute 14 Geo. III. which says, “ that gaolers shall not detain prisoners for their fees, but that they shall be discharged ;" if he had not found out the difference between a verdict of Not Guilty, and that judgment which authorizes a man to go without paying his fees, if it had not occurred to him, that, when this discharge is given, detainers may be lodged in civil suits, or for other felonies, I hope in God we are not so revolutionized as to contend, that a man shall not be charged with two treasons, as well as with two felo nies. Upon Mr. Fergusson being told, that there was this warrant (the warrant being publicly exhibited), it is not for me to examine, what it became Mr. Fergusson to do, because of that he is himself the judge. But I say, if, after he was apprized of that, he took any part, not by positive actual CORduct, but by encouragement, capable of being exhibited to the understandings, and impressed upon the minds of the Jury, as fuch (however differently persons may tell their ftories, with reference to certain facts, in which they do not agree, however strongly individuals may speak with respect to facts that they did not observe, however negatively they may say they did not see this or that, and they do not think it possible, and fo forth); if there are positive circumstances sworn, which amount to acts of encouragement, which a Jury can feel and act upon, they must look to that positive evidence ; and if, in this case, Gentlemen, you find that positive evidence existing, however unwilling you may be to find such a verdict, you are sworn, upon your oaths, to give a verdict according to law; and you must find a verdict therefore in support of this information.
Gentleinen, I will not go into a detail of the evidence, which
you will hear from his Lordship; but with reference to Lord Thanet and Mr. Fergusson, I cannot part with the evi. dence given by Mr. Solicitor-General ; but I shall first make this observation upon the evidence of Mr. Serjeant Shepherd,
to whose credit, honour, and accuracy, we all do justice, that
his mind; and when he was asked what he meant by encouragement ? he describes it to have been by his actions. But he not only gives his evidence in this way as to that particular fact, but he gives it also with a caution, which entitles it to the same degree of credit which Mr. Serjeant Shepherd's evidence derives from its accuracy ;
or when he comes to speak a circumstance, with reference to which he is not certain, he tells you,
" Mr. 6
" O'Connor jumped over the bar, and Mr. Fergusson turned « himself round and appeared to me to follow Mr. O'Connor ; “ but I cannot say that he did.” He qualifies that apprehen. fion in his mind, by telling you that he may be mistaken, and then he gives you the reason why he doubts whether that apprehension was or was not justly founded ; and he finally states in his evidence a circumstance respecting Lord Thanet, which I think will deserve a great deal of your confideration. Gentlemen, a Learned Friend of mine behind me, Mr. Abbott, has told you, that he heard Lord Thanet express himself in the manner which he has described, and I trust I shall not be told that the manner of an expression is not evidence of the import of the mind of the man from whose mouth the expression flows. He states to you the circumstance of Mr. Sheridan's conver. sation with the Learned Judge, and he was struck with the extreme difference of the manner in which Mr. Sheridan ex. pressed himself to that Learned Judge, from the manner in which Lord Thanet exprefled himself. Am I to be surprized that Lord Thanet could be engaged in such a project, if I can be lieve, that he, a Peer of the Realm, made use of such language to a Judge of the Country, that “he thought it fair that he “ (the prisoner) should have a run for it?”-a run, for what ; Why, a run to elude justice !-a run to get out of the hands of a Court of Justice-a run to prevent being brought to justice; and this is the sentiment of a Peer of the Realm he thought « it fair to have a run for it. And, considering it to be fair, he acted upon that apprehension, as far as he had the power acting. This is a circumstance requiring your anxious confideration. Whether this Noble Peer struck Rivett firit, which I do not find Rivett say that he did, is of no importance. These men have a certain temper and degree of spirit about them, which might perhaps induce them to thrash a Peer more than any body else, if they felt themselves ill-treated; but Mr. Rivett may take this advice of me -I hope, in future, he will not use such treatment if he can avoid it. But what presses upon my mind is, that if Lord Thanet, treated in the manner he was by Rivett, had no connection with this project of rescue ; if he had not, either from the circumstances that fell under Mr. Sheridan's observation, or from other circumstances, manifested that he meant there should be a rescue, is it the conduct of a man of considerable situation-is it the conduct of a man of common sense, instead of making a serious complaint upon the subject, instead of ftating, as he naturally would have done, “ this project of rescuing a man from the “ hands of justice, is that species of project, which, in my os situation, it must be known I must feel to be inconsistent “ with propriety, duty, and honour, to have embarked in pus On the contrary, he is perfectly neutral ; no complaint is made
upon the subject. It appears to me, that if I had been struck two or three times by that officer, the manner in which I would have acted upon that occasion would certainly not have been to have immediately, stated that “it was fair the prisoner is should have a run for it,” but to have made some application to have those punished of whose conduct I had a right to complain. Now, this evidence of the Solicitor-General is also confirmed by Mr. Abbott, and by Mr. Serjeant Shepherd, who ftates to you what Lord Thanet did ; and he states it to you, that he was not holding up his hands for the purpose of rescuing himself from the pressure of the mob, but was holding up his hands to defend himself against those persons who were pursuing Mr. O'Connor ; and he gives his evidence in such a way, that you can have no doubt as to the personal conduct of Lord Thanet. Then when you have heard this evidence on the part of the prosecution, I mean the evidence that goes to positive facts, it will be for you to decide whether they are not all reconcileable with the negative evidence given on the part of the Defendants. I have not gone into the whole of the evidence, because I feel that 'my Lord has a painful and an anxious duty to perform, and whatever your verdict may be, I am confident and sure that this prosecution will have been very
beneficial to the country.
I hope and trust that I shall never see such another ; but whenever I fee an occasion which calls for it, whilft I hold the situation which I have the honour to fill, I will not fail to institute it.
Gentlemen, having said thus much, and having endeavoured to discharge myself of my duty, you will be good enough to say what is due as between the Public and the Defendants,
LORD KENYON'S CHARGE TO THE JURY.
GENTLEMEN OF THE JURY,
Is I could, consistently with my own sense of my duty, or consistently with the public expectations—confiftently with the expectations of the Bar on the one side and the other, and with your expectations--I could relieve myself from going through, in detail, all the particulars of this case, after con. fiderable bodily and mental exertions already, I should cer.
tainly fave myself from a great deal of trouble. But I will not shrink from the discharge of my duty, though it may be attended with labour and pain.
This is a case of the first importance. I do not remember any case that ever happened in my time, in the shape of a misdemeanour, of more importance to the Public: and it has been conducted in the moit solemn manner. It is brought before the whole Court, assisted by a Jury of Gentlemen from the county of Kent, taken from the highest orders of the people, and whose educations and stations in the world qualify them to . decide causes of such importance. It is usual, in causes of this kind, where there is a number of Defendants, and where the evidence does not extend fufficiently to them all, to submit to the Jury, before the end of the cause, whether those upon whom the evidence does not attach, ought not to be acquitted, in order that the other Defendants may avail themselves of their evidence, if they shall think proper. It was with a view to that very state of the question that I took the liberty to submit to you, that two of the Defendants ought to be acquitted before the other Defendants produced their evidence; and I did it with a view that the others might, if they thought fit, appeal to their evidence, to snew, on the rest of the case, what the real state and justice of it was.
In dispensing the criminal justice of the country, we have sometimes an arduous talk to perform. It is not a pleasant thing, most certainly, to condemn any one of our fellow.creatures to punishment; but those who are entrusted with the admini. stration of the criminal justice of a country, must summon up their fortitude, and render justice to the Public, as well as justice tempered with mercy to the individual. I have the authority of Lord Hale, one of the greatest and beft men that ever lived, for saying, that Juries are not to overlook the evidence that they are not to forget the truth, and to give way to false mercy ; but, without looking to the right hand or the left, they are to weigh the evidence on both lides, and then, according to the best of their judgment and underitanding, to do justice to the Public, as well as to the Defendants.
Before I proceed to sum up the evidence, I shall only make one other observation, which was made by Mr. Whitbread in giving his evidence, the tone of whose voice I never heard before. Having gone through his evidence, he gave us this legacy, as a clue to direct us in the decision of this cases that,
in a scene of so much confusion, there are many things which “ muft escape the observation of every individual.” Having -stated thus inuch to you, I will now proceed to sum the dence; and when I have done that, I shall make some few ob. servations on it. [His Lordship here fummed up the evidence on both sides, and then proceeded as follows:]