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that I will confirm his having used by several of my own wita. nesses.
Mr. Brooks, who was next called, says, he “ faw Mr. * O'Connor when the Jury returned. Mr. Ferguson held a "fword
or stick over the heads of the people." A sword, or fomething else, given to us in this confused manner, adds no force to the evidence ; more especially when, upon being asked if he can swear with positiveness, he admits that he cannot.
Mr. Stafford was then examined, who says, “he fat under the “ Jury-box, and could fee Lord Thanet diftingly." I particuIarly asked him that question, and how far distant he was from him : he answered me, “ Not above two yards from me—three “ times nearer than I am to you." He saw Lord Thanet, then, distinctly, at two yards distance, and from the beginning to the end of the confusion ; yet he swears, “ He did not observe « him engaged in any obstruction.” Afterwards, when the tumult became general, this witness has been described as brandishing a drawn sword-no doubt, from a sudden apprehension of danger, and to avert it from that quarter. Now, fuppose Mr. Stafford had come down, out of mere curiosity, to Mạidstone, to hear the trial, and had been seen flourishing this drawn sword in the midst of the affray --- What should have prevented Mr. Rivett from considering this gentleman as the greatest rioter of them all? Why might he not the rather have represented him as brandishing it to favour the escape of the prifoner? One cannot, indeed, imagine a case of greater cruelty and injustice ; but what could have been his protection, if Mr. Fergusson can be convicted on the evidence you have heard ? Was not his situation in Court, as Counsel at the Bar, equally respectable as that of the Clerk of the Arraigns ? and is not the presumption of an evil design against the dignity of the Court equally removed from both of them ? Yet the one is only described as flourishing a small stick; whilst the other was fo wielding his metallic tractor, that if he had not pleaded a flat bar to the aflize in the manner he conducted this faulchion, the issue must have been blood. Mr. Garrow faid to him at the moment, “ Take care that you do no mischief ;' and undoubtedly Mr. Stafford neither did nor intended any ; but that makes the stronger for my arguinent, and shews how little is to be built upon appearances which
of a scene of tumult. The case for your confideration feems, therefore, to be reduced to this -- Whether you will believe the two Learned Judges, and the other respectable witnesses ? or, whether you will depend upon the fingle and unsupported evidence by which violence has been imputed ? Mr. Stafford, who was within two yards of Lord Thanet, has completely acquitted him ; for had he been in the situation in which Rivett bas placed him, what could possibly have prevented him from fee.
ing it? It was also sworn by Rivett, that Mr. Ferguson had a fick ; but upon appealing to Mr. Stafford's evidence, who sat just opposite to him, we find that he had none ; but that he extended his arms seemingly to prevent persons approaching that side of the Court. Mr. Stafford admits, that when he faw Mr. Fergusson, it was in the midst of confufion ; and it would be a harsh conclusion indeed that Mr. Fergusson is guilty of the conspiracy charged on this record, because, upon being forced out of his feat by the tumult which surrounded him, as I will shew you he was by several witnesses, he had extended his arms in the manner you have heard. Mr. Stafford added, that the gaoler had hold of Mr. O'Connor's coat ; that Mr. Fergason forced himself between them, and that the gaoler Itretched his hand behind. Binns to take hold of the prisoner. This must be a mistake; for Watson fat as where my
learned friend Mr. Wood is at present (pointing to him), and Mr. O'Connor ftood as where Mr. Raine is now fitting (pointing to bim); and at no part of the time is it even asserted that Mr. Ferguson was in the box of the Solicitors, and confequently it was utterly impoflible that he could have prerented the gaoler from keeping hold of the coat of the prisoner.
Mr. Clifford says, he sat near the Marshal. I thought he had faid that he sat there as Marshal ; and, not knowing the person of the honourable Gentleman, I thought he had been the Marshal of the Court. There was no new fact introduced by this witness.
Next came Mr. Cutbush. My Learned Friends appeared to be foon tired of his evidence; and it seemed to produce an emotion of surprise upon the Bench, that a witness, in fuch a stage of the cause, should give such extraordinary testimony He faid, “ I saw Lord Thaket; he was two or three yards from s Mr. O'Connor. I obferved nothing particular till I saw « Rivett striking Lord Thanet on the back with a fword.” Now, as it is admitted on all hands that no such thing ever happened, it affords another instance of the difficulty with which Juries can collect any evidence to be relied on in a scene of uproar and confusion.
The evidence of the last witness, Mr. Parker, contains no. thing which I need detain you with.
Gentlemen, I have now faithfully brought before you all that is material or relevant in the case of the Crown ; and have ing accompanied this statement with the observations which appeared to me to apply to it, let me suppose that my task was finished ; that I had nothing by which I could farther defend my clients; and that I were now to leave you to the AttorneyGeneral's reply, and the assistance of the Court. Were this my fituation, I should fit down confident that you could not pronounce a verdict against them, upon fuch equivocal evidence,
either honourable to yourselves, or beneficial to your country, I will not tire your patience by an extended recapitulation of arguments which you have heard already with so much patience and attention ; but I feel it to be my duty just to point out the inadequacy of the testimony..
The charge against the Defendants is, a conspiracy to rescue Mr. O'Comor from legal custody, by, tumult and violence; all the other acts, as they are put upon the record, and brought before you by evidence, being no otherwise relevant nor credible than as the means employed to effectuate that criminal purpose. Your belief of that purpose can therefore be the only foundation of a righteous verdict. Yet not only no part of the proof applies to establish it, but the existence of it is negatired by every principle which can guide the human judgment. No motive, either built upon fact, or flowing from reasonable prefumption, has appeared : none has even been suggeited: the object, thus pursued without an intereft, is palpably uselefs and impracticable-detection and punithment inevitable--the crime, if committed, committed before the whole Court, its Judges, and Officers ; yet the evidence of it painfully and lamely extracted from a few, and that few overborne by the testimony of the most respectable witnesses, best fituated to observe, and beit qualified to judge of what was passing. I have therefore no woré to ask of you, Gentlemen, than a very short audience, while I bring before you the Defendants' evidence.-My case is this :
It stands admitted, that the confusion had not begun when the Jury returned with their verdict—that there was only a motion towards it when the officers were directed by the Court to be filent, and to stand back. The period, therefore, to be attended to, is the conclusion of the sentence on O'Coigly, when the officers, from their own account of the transaction, believing that Mr. O'Connor intended to escape from them, and giving them credit that fuch intention could not be frustrated without some violence and precipitation, rushed suddenly through the Solicitors' box, where they met indeed with resistance, but a resistance which was the natural consequence of their own impetuofity, and not the result of any conspiracy to resist the execution of the warrant.
To eitablish this truth with positive certainty (if indeed it is not already, manifest from the whole body of the prooi), I shall produce, as my first witness, Mr. George Smith, whom I be. fore named to you, and who was one of the first persons in their way on their entering the Court. He sat as near Lord Thanet as I now stand to where his-Lordíhip fits before you, and who, upon the principle of this profecution, should, above all others, have been made a Defendant ; for he will admit freely, that he endeavoured to push them from him with his
elbow, when they pressed upon him with great and sudden violence : he will tell you that at this time Mr. Ferguson was in his place at the bar ; that Lord Thanet was in the place where Serjeant Shepherd described him ; that he was violently struck, without having given the smallest provocation, without having made any motion, directly or indirectly, towards the rescue of the prisoner, or even looked round at that time to the quarter where he stood : that Lord Thanet, in order to escape from this unprovoked violence, so far from approaching Mr. O'Connor, endeavoured to get nearer where the Counsel fat, when Rivett, instead of advancing Itraight forward in pursuit of his object, which was to arrest the prisoner, levelled repeated blows at him, as he was obliged himself to admit, whilft Lord Thanet lay back in the manner which has been so often deseribed to you, protecting his head from the blows he was receiving.
In the same feat was Mr. Bainbridge, a gentleman educating for the Bar, a near relation of the Duke of St. Alban's, and a pupil, I believe, of my honourable and learned friend, Mr. Wood; a person who cannot reasonably be suspected of giving false testimony, to encourage violence and outrage againft the laws of his country. Mr. Bainbridge will swear positively, that, when the officers came forward, Lord Thanet was in the Solicitors' box, and Mr. Fergusson in his place at the bar, where he remained till the witness saw him forced out of his place, and obliged to stand upon the table, and that he had no fick. What, then, becomes of Rivett's evidence, who swore he never saw Lord Thanet till after this period, although it is admitted that it must have been by the tumult, in which he falsely implicated his Lordship, that Mr. Fergusson was driven out of his place ? This is absolutely decisive of the case :—for it will appear farther, that Mr. Fergusson continued in his place after the period when Lord Thanet was seen defending himself. It was rather insinuated, than sworn to distinctly, that there were gentlemen coming from the other end of the Court, as if to lend their assistance; but this operates directly in exculpation of Mr. Fergufiori, who prevented Sir Francis Burdett from approaching to that quarter of the Court. Sir Francis was certainly not advancing for the purpose of riot, but to extricate Lord Thanet; yet Mr. Fergusfon, left it should add to the confusion, publicly prevented him, under the eye
of the whole Court. The next witnefs I thall produce to you will be Mr. Charles Warren, son of the late highly celebrated physician---a most honourable young man, and who, I verily believe, will be as great an ornament to our profession, as his father was to his. Mr. Warren was placed at the table, attending in his gown as Counsel, and had the most undeniable opportunity of feeing Mr.
Fergusson, who fat near him, in his gown also. What Mr: Fergusson did cannot be matter of judgment or opinion in such a witness, but matter of certainty : the conduct imputed, if it really exifted, could neither be unobferved nor forgot. ten ; it was exactly the same as if I were at this moment to break out into madness, and insult the Court.-In such a case, would any of you qualify your evidence of such a scene, paffing before your eyes, with I think, or I believe ?-~No: you would say at once, I saw that gentleman hold up
his fift, and insult and threaten the Judges. Such extraordinary tranf. actions address themselves directly to the senses, and are not open to qualifications of opinion or belief. For the same reafon, Mr. Smith, and Mr. Bainbridge, must both be perjured, if the evidence of Rivett be the truth ; and Mr. Warren (subject to the very fame observation) will swear pofitively that he faw Lord Thanet severely assaulted, and THAT HE DID NOT STRIKE. Is this a mere negative, in opposition to Rivett's affirmative oath ? Certainly not : for there are some negatives. which absolutely encounter the inconsistent affirmatives, and with equal force.
Let me suppose any man to say at this moment, “ Mr. Mackintoj" (who fits close by me) “ truck Lord Thanet," who is just before me, whilft I was speaking to you, the Jury ; and I were to answer that he did not, -that would, no doubt, be in form a negative proposition; but it would comprehend a counter affirmative if I had seen Mr. Mackintosh in such a situation, relative to Lord Tharet, as that he was not near enough to strike him, or that, if he had struck him, I muft inevitably have teen him. Upon this principle, which it is indeed pedantry to illustrate, because common sense obtrudes it upon the weakest, Mr. Warren will tell you POSITIVELY that Lord Thanet did not strike Rivett; and that, at the time when this violence is imputed to him, Mr. Ferguson, who is reported to have begun the affray, and who had, it seems, a stick wrenched from him, was in his place at the bar.
I will then call to you Mr. Maxwell, a gentleman of rank and fortune in Scotlatid, who lately married a daughter of Mr. Bouverie, member of parliament for Northampton. He stood under the witness-box, which may be as in that corner, (pointing to a corner of the Court), commanding a full and near view of every thing that could pass; and he will confirm, in every particular, the evidence of Mr. Warren, Mr. Bain. bridge, and Mr. Smith. I will also call Mr. Whitbread, who attended the trial, as a witness, who was near Mr. Sheridan, and, like him, did every thing in his power to preserve the peace, Mr. Whitbread's situation I need hardly describe to you. He is a man of iminenfe fortune, acquired most honourably by his father in trade, and who possesses almost incalculable