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opinion commendable, would now be considered, joot of prosecution—not the prosecution of my not merely as intemperate and unguarded, but learned friend not the prosecution of the Atas highly criminal.

torney General--not the prosecution of his Maj. Gentlemen, the fashion of this world speedily esty; but the prosecution of Mr. Yatman, who Reasons for lig. passeth away. We find these glori. wishes to show you his great loyalty to the state now being pros ous restorers of equal representation and Constitution, which were in danger of falling,

determined, as ministers, that, so far had it not been for the drugs of this worthy froin every man being an elector, the metropolis apothecary. of the kingdom should have no election at all; With regard to the new government of France, but should submit to the power, or to the softer since the subject has been introduced, allurements, of the Crown. Certain it is, that, all I can say of it is this, that the good Frera la Revolufor a short season, Mr. Frost being engaged pro- or evil of it belongs to themselves. fessionally as agent for the government candidate, They had a right, like every other people upon did not lindeed, he could not) oppose this incon- earth, to change their government; the syster sistency between the doctrine and practice of his destroyed was a system disgraceful to free and friends; and in this interregnum of public spirit, rational beings; and if they have neither substi. he was, in the opinion of government, a perfect luted, nor shall hereafter substitute, a better in patriot, a faithful friend to the British Constitu- its stead, they must eat the bitter fruits of their tion. As a member of the law, he was, there- own errors and crimes. As to the horrors which fore, trusted with government business in matters now disfigure and desolate that fine country, all of revenue, and was, in short, what all the friends good men must undoubtedly agree in condemn. of government, of course, are, the best and most ing and deploring them, but they may differ, nevapproved--to save words, he was like the rest of ertheless, in deciphering their causes. Men to them, just what he should be. But the election the full as wise as those who pretend to be wiser being over, and, with it, professional agency, and than Providence, and stronger than the order of Mr. Frost, as he lawfully might, continuing to hold things, may, perhaps, reflect that a great fabrio his former opinions (which were still avowed and of unwarrantable power and corruption could not gloried in, though not acted on by his ancient fall to the ground without a mighty convulsionfriends), he, unfortunately, did not change them that the agitation must ever be in proportion to the other day, when they were thrown off by the surface agitated—that the passions and errors others. On the contrary, he rather seems to inseparable from humanity must heighten and have taken fire with the prospect of reducing swell the confusion; and that, perhaps, the crimes them to practice; and being, as I have shown and ambition of other nations, under the mask of you, bred in a school which took the lead in bold self-defense and humanity, may have contributed ness of remonstrance of all other reformers be- not a little to aggravate them—may havo tended fore or since, he fell, in the heat and levity of to imbitter the spirits and to multiply the evils wine, into expressions which have no correspond- which they condemn-to increase the misrule and ence with his sober judgment; which would have anarchy which they seek to disembroil, and in the been passed over or laughed at in you or me, but end to endanger their own governments, which which, coming from him, were never to be for- by carnage and bloodshed, instead of by peace, given by government. This is the genuine his- improvement, and wise administration, they protory of his offense. For this he is to be the sub- fess to protect from the contagion of revolution

As to the part which bodies of men in England 6 The following are copies of Mr. Pitt's letters :

have taken, though it might, in some * Lincoln's Inn, Friday, May 10th. “Dear Sir, I am extremely sorry that I was not instances

, be imprudent and irregular, it had a theo at home when you and the other gentlemen from yet I see nothing to condemn, or to the Westmiuster Committee did me the honor to support, the declamation which we daily hear call.

upon the subject. The congratulations of En “May I beg the favor of you to express that I am glishmen were directed to the fall of corrupt and truly happy to find that the motion of Tuesday last despotic power in France, and were animated by has the approbation of such zealous friends to the a wish of a milder and freer government-hap pablic, and to assure the committee that my exer

pier for that country, and safer for this. They tions shall never be wanting in sapport of a meas. ure, which I agree with them in thinking essentially were, besides, addressed to France when she was necessary to the independence of Parliament and the at peace with England, and when no law was, liberty of the people.

therefore, broken by the expression of opinion or "I have the honor to be, with great respect and satisfaction. They were not congratulations on esteem, sir, your most obedient and most humble the murders which have since been committed, servant,

W. Pitt. nor on the desolations which have since over" John Frost, Esq., Percy Street."

spread so large a portion of the earth, neither " Lincoln's Inn, May 12th, 1782. were they traitorous to the government of this “SIR, -I have received the favor of your note, and shall be proud to receive the honor intended me by 7 Mr. Erskine alluded to the addresses sent from the gentlemen of the Middleses Committee, at the several political societies in England to the French time you mention.

National Assembly, which, in the expressions I am, with great regard, sir, your most humble their warm approbation of the new government on servant,

W. Pitt. tablished in France, bordered closely on seditiou - John Frost Esq., Percy Street."

against the English government.

ed in England. Latentimis

the crime.

country. This we may safely tako iu trust, since the government; he the said defendant, his afore-
not one of them, even in the rage of prosecution, said wicked contrivances and intentions to com.
has been brought before a criminal court. For plete, perfect, and render effectual, on the 6th
myself, I never joined in any of these addresses, day of November," spoke the words imputed to
but what I have delivered concerning them is all him by the Crown. This is the indictment, and
I have been able to discover; and government it- it is drawn with a precision which marks the true
self, as far as evidence extends, has not been principle of English criminal law. It does not
more successful. I would, therefore, recommend merely charge the speaking of the words, leaving
it to his Majesty's servants, to attend to the re- the wicked intention to be supplied and collerted
flections of an eloquent writer [Mr. Burke) at by necessary and unavoidable inference, because
present high in their confidence and esteem, who such inference may or may not follow from the
has admirably exposed the danger and injustice words themselves, according to circumstances,
of general accusations. “This way of proscrib which the evidence alone can disclose. It charges
ing the citizens by denominations and general therefore the wicked intention as a fact,
descriptions, dignified by the name of reason of and as constituting the very essence of essential to
state, and security for Constitutions and common the crime, stating, as it must state, to
wealths, is nothing better at bottom than the mis- apprise the defendant of the crime alleged against
erable invention of an ungenerous ambition, which him, the overt act, by which such malicious par.
would fain hold the sacred trust of power, with pose was displayed, and by which he sought to
out any of the virtues or energies that give a ti render it effectual. No man can be criminal
tle to it; a receipt of policy, made up of a detest. without a criminal intention — actus non facit
able compound of malice, cowardice, and sloth. reum nisi mens sit rea. God alone can look into
They would govern men against their will; but the heart, and man, could he look into it, has no
in that government would be discharged from the jurisdiction over it, until society is disturbed by
exercise of vigilance, providence, and fortitude; its actions; but the criminal mind being the source
and, therefore, that they may sleep on their watch, of all criminality, the law seeks only to punish ac-
consent to take some one division of the society tions which it can trace to evil disposition - it
into partnership of the tyranny over the rest. pities our errors and mistakes — makes allow.
But let government, in whatever form it may be, ances for our passions, and scourges only our
comprehend the whole of its justice, and restrain crimes.
the suspicious by its vigilance ; let it keep watch Gentlemen, my learned friend the Attorney
and ward; let it discover by its sagacity, and General, 'in the conclusion of his ad-
punish by its firmness, all delinquency against its dress to you, did more than ratify lle cotisel for
power, whenever it exists in the overt acts, and these propositions. With a liberality
ihen it will be as safe as God and nature intend- and candor very honorable to himself

, and highly ed it should be. Crimes are the acts of individ- advantageous to the public which he represents, uals, and not of denominations; and, therefore, he said to you, that is the expressions charged arbitrarily to class men under general descrip- upon the defendant should turn out, in your opintions, in order to proscribe and punish them in ion, to be unadvised and unguarded, arising on the lump for a presumed delinquency, of which, the sudden, and unconnected with previous bail perhaps, but a part-perhaps none at all—are intention, he should not even insist upon the guilty, is, indeed, a compendious method, and strictness of the law, whatever it might be, nor saves a world of trouble about proof; but such a ask a verdict, but such as between man and man, method, instead of being law, is an act of unnat- acting upon moral and candid feelings, ought to ural rebellion against the legal dominion of rea- be asked and expected. These were the sug. son and justice; and a vice, in any Constitution gestions of his own just and manly disposition, that entertains it, which at one time or other will and he confirmed them by the anthority of Mr. certainly bring on its ruin."8

Justice Foster, whose works are so deservedly
Gentlemen, let us now address ourselves to celebrated. But judging of my unfortunate cli-
Crime charged

the cause, disembarrassed by foreign ent, not from his own charity, but from the false
considerations ; let us examine what information of others, he puts a construction upon

the charge upon the record is, and see an expression of this great author which destroys how it is supporteil by the proofs. For, unless much of the intended effect of his doctrine -a the whole indictmest, or some one count of it, be doctrine which I will myself read again to you, in form and substance supported by the evidence, and by the right interpretation of which I desire the defendant must be acquitted, however in the defendant may stand or fall. In the passage other respects you may be dissatisfied with his read to you, Foster says, “As to mere words, imprudence and indiscretion. The indictment they differ widely from writings in point of real charges, “That the defendant being a person of malignity and proper evidence; they are ofter an impious, depraved, seditious disposition, and the effect of mere heat of blood, which in some maliciously intending to disturb the peace of the natures, otherwise well disposed, carrieth the kingdom; to bring our most serene Sovereign man beyond the bounds of prudence ; they are into hatred and contempt with all the subjects of always liable to great misconstruction, from the the realm, and to excite them to discontent against

• This act does not make a man guilty without the • Mr. Burke's speech at Bristol See page 308. intention.

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ignorance or inattention of the hearers, and too conviction upon any other footing. Surely, then, often from a motive truly criminal." Foster it was open to the Crown, upon every principle afterward goes on to contrast such loose words, of common sense, to have proved the previous " no relative to any act or design,” for so he ex- malice by all previous discourses and previous presses himsell, with “ words of advice and per. conduct connected with the accusation. And yet, suasion in contemplation of some traitorous pur- after having wholly and absolutely failed in this pose actually on foot or intended, and in prosecu- most important part of the proof, we are gravely tion of it.Comparing this rule of judgment told that the Crown having failed in the affirma. with the evidence given, one would have expect- tive, we must set about establishing the negative ! ed a consent to the most favorable judgment for that otherwise we are not within the pale or one would have almost considered the quotation protection of the very first and paramount prin: as a tacit consent to an acquittal. But Mr. At- ciples of the law and government of the country! torney General, still looking through the false Having disposed of this stumbling-block in the medium of other men's prejudices, lays hold of way of sound and indulgent judgment, we may the words "otherwise well disposed," and in- now venture to examine this mighty offense as grasts upon them this most extraordinary requi- it is proved by the witnesses for the Crown, supMode of evad: sition. Show me, he says, that Mr. posing the facts neither to have been misstated

Frost is otherwise well disposed. Let from misapprehension, nor willfully exaggerated.

him bring himself within the meaning Mr. Frost, the defendant, a gentleman who, of Foster, and then I consent that he shall have upon the evidence, stands wholly unimpeached the fullest benefit of his indulgent principle of of any design against the public peace, Evidence judgment. Good God, gentlemen, are we in an or any indisposition to the Constitution against the English court of justice ? Are we sitting in of the kingdom, appears to have dined examined. judgment before the Chief Justice of England, at the tavern over the Percy coffee-house. This with the assistance of a jury of Englishmen? he did not with a company met upon any politAnd am I in such a presence to be called upon ical occasion, good or evil, but, as has been adto prove the good disposition of my client, before mitted in the opening, with a society for the en. I can be entitled to the protection of those rules couragement of agriculture, consisting of most of evidence which apply equally to the just and reputable and inoffensive persons, neither talking to the unjust, and by which an evil disposition nor thinking about government, or its concerns : must be proved before it shall even be suspect so much for the preface to this dangerous coned? I came here to resist and to deny the ex- spiracy. The company did not retire till the istence of legitimate and credible proof of disloy- bottle had made many merry circles; and it apalty and disaffection ; and am I to be called upon pears, upon the evidence for the Crown, that Mr. to prove that my client has not been, nor is, dis- Frost, to say the least, had drunk very freely. loyal or disaffected? Are we to be deafened with But was it with the evil intention imputed to panegyrics upon the English Constitution, and yet him that he went into this coffee-house to cir. to be deprived of its first and distinguishing seat-culate his opinions, and to give effect to designs ure, that innocence is to be presumed until guilt he had premeditated ? He could not possibly be established ? Of what avail is that sacred go home without passing through it; for it is maxim, is, upon the bare assertion and imputa- proved that there was no other passage into the tion of guilt, a man may be deprived of a rule of street from the room where he had dined. But evidence, the suggestion of wisdom and human. having got there by accident, did he even then ity, as if the rule applied only to those who need stop by design, and collect an audience to scatter no protection, and who were never accused ? If sedition? So far from it, that Mr. Yatman, the Mr. Frost, by any previous overt acts, by which very witness against him, admits that he interalone any disposition, good or evil, can be proved, rupted him as he passed in silence toward the had shown a disposition leading to the offense in street, and fastened the subject of France upon question, it was evidence for the Crown. Mr. him. Every word which passed (for the whole Wood, 10 whose learning is unquestionable, un is charged upon the very record as a dialogue doubtedly thought so, when, with the view of with this witness) was in answer to his entrapcrimination, he asked where Mr. Frost had been ping questions, introduced with the familiarity before the time in question, for he is much too of a very old acquaintance, and in a sort of bancorrect to have put an irregular and illegal ques- ter, too, which gave a turn to the conversation tion in a criminal case: I must, therefore, sup- that renders it ridiculous, as well as wicked, pose his right to ask it appeared to him quite to convert it into a serious plan of mischief : clear and established, and I have no doubt that it “Well,” says Mr. Yatman, "well, Mr. Equality, was so. Why, then, did he not go on and follow so you have been in France—when The defendant's it up, by asking what he had done in France— did you arrive? I suppose you are red to France. what declarations he had made there—or what for equality, and no Kings ? O not to England part he proposed to act here, upon his return? yes," says Mr. Frost, “certainly I am for equal. The charge upon the record is, that the words ity; I am for no Kings.” Now, beyond all queswere uttered with malice and premeditation; tion, when this answer was made, whether in and Mr. Attorney General properly disclaims a jest or in earnest, whether when drunk or sob

er, it neither had, nor could have, the remotest 10 One of the counsel for the prosecution. relation to England or its government. France had just abolished its new Constitution of mon- of justice? Thank God, the world lives very archy, and set up a republic. She was at that differently, ur it would not be worth living in. nioment divided and in civil consusion on the sub- There are moments when jarring opinions may ject; the question, therefore, and the answer, as be given without inconsistency — when Truth they applied to France, were sensible and rele- herself may be sported with without the breach vant; but to England or to English affairs they of veracity-and where well-imagined nonsense had not (except in the ensnaring sequel) the re- is not only superior to, but is the very index to motest application. Had Yatman, therefore, end- wit and wisdom. I might safely assert-taking, ed here, the conversation would have ended, and too, for the standard of my assertion the most Mr. Frost would have been the next moment in honorably correct and enlightened societies in the street. But still the question is forced upon the kingdom—that if malignant spies were prophim, and he is asked, “What! no Kings in En- erly posted, scarcely a dinner would end without gland ?'' although his first answer had no con- a duel and an indictment. nection with England; the question, therefore, When I came down this morning, and sound, was sell-evidently a snare, to which he answered, contrary to my expectation, that we utration free "No Kings in England ;" which seemed to be all were to be stuffed into this misera- case supposed. that was wanted, for in a moment every thing ble hole in the wall," to consume our constituwas confusion and uproar. Mr. Frost, who had tions: suppose I had muttered along through neither delivered nor meant to deliver any seri- the gloomy passages—“What, is this cursed trious opinion concerning government, and finding al of Hastings going on again? Are we to hare himself injuriously set upon, wished, as was most no respite ? Are we to die of the asthma in this natural, to explain himself

, by stating to those damned corner? I wish to God that the roof around him what I have been just stating to you. would come down and abate the impeachment, But all in vain; they were in pursuit of the im- Lords, Commons, and all together."

Such a mortal fame of the very business we are engaged wish, proceeding from the mind, would be des in at this moment, and were resolved to hold their perate wickedness, and the serious expression of advantage. His voice was immediately drowned it a high and criminal contempt of Parliament. by the clamors of insult and brutality; he was Perhaps the bare utterance of such words, eren baited on all sides like a bull, and left the coffee- without meaning, would be irreverent and foolish. house without the possibility of being heard either But still, if such expressions had been gravely in explanation or defense. An indictment was imputed to me as the result of a malignant mind, immediately preferred against him, and from that seeking the destruction of the Lords and Conemoment the public ear has been grossly and mons of England, how would they have been wickedly abused upon the subject, his character treated in the House of Commons on a motion for shamefully calumniated, and his cause prejudged my expulsion? How! The witness would have before the day of trial.

been laughed out of the Houre before he had half Gentlemen it is impossible for me to form any finished his evidence, and would have been voted

other judgment of the impression to be too great a blockhead to deserve a worse such circumstan- which such a proceeding altogether character. Many things are, indeed, wrong and of all hunian coa- is likely to make upon your minds, reprehensible, that neither do nor can become the

but from that which it makes upon objects of criminal justice, because the bappiness my own. In the first place, is society to be pro- and security of social life, which are the very tected by the breach of those confidences, and in end and object of all law and justice, forbid the the destruction of that security and tranquillity communication of them; because the spirit of a which constitute its very essence every where, but gentleman, which is the most refined morality, which, till of late, most emphatically character- either shuts men's ears against what should not ized the life of an Englishman? Is government be heard, or closes their lips with the sacred scal to derive dignity and safety by means which ren- of honor. der it impossible for any man who has the least This tacit but well-understood and delightful spark of honor to step forward to serve it? Is compact of social life is perfectly con. Society in 9 the time come when obedience to the law and sistent with its safety. The security etnity on the correctness of conduct are not a sufficient pro- of free governments, and the unsus- subject tection to the subject, but that he must measure pecting confidence of every man who lives under his steps, select his expressions, and adjust his them, are not only compatible, but inseparable. very looks in the most common and private in. It is easy to distinguish where the public duty tercourses of life ? Must an English gentleman calls for the violation of the private one. Crim in future fill his wine by a measure, lest, in the inal intention, but not indecent levities—not even openness of his soul, and while believing his grave opinions unconnected with conduct, are to neighbors are joining with him in that happy be exposed to the magistrate; and when men relaxation and freedom of thought which is the (which happens but seldom), without the honor or prime blessing of life, he should find his charac- the sense to make the due distinctions, force conter blasted, and his person in a prison ? Does plaints upon governments which they can neither any man put such constraint upon himself in the approve of nor refuse to act upon, it becomes the most private moment of his life, that he would be contented to have his loosest and lightest words 11 The King's Bench sat in the small Court of Com recordled, and set in array against him in a court mon Pleas.

To accuse under


Evidence of this

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office of juries—as it is yours to-day—to draw | ets without a warrant founded upon complaint. the true life in their judgments, measuring men's Constructed by man to regulate human infirmi. conduct by the safe standards of human life and ties, and not by God to guard the purity of angels, experience.

it leaves to us our thoughts, our opinions, and Gentlemen, the misery and disgrace of society, our conversations, and punishes only overt acts under the lash of informers, running before the of contempt and disobedience to her authority. law and hunting men through the privacies of Gentlemen, this is not the specious phraso of domestic life, is described by a celebrated speak- an advocate for his client; it is not er (Mr. Burke) with such force and beauty of even my exposition of the spirit of from a prova eloquence, that I will close my observations on our Constitution; but it is the phrase this part of the subject by repeating what can and letter of the law itself. In the most critical not, I am persuaded, be uttered among English- conjunctures of our history, when government nen without sinking deep into their hearts: "A was legislating for its own existence and con. mercenary informer knows no distinction. Under tinuance, it never overstepped this wise modeissuch a system, the obnoxious people are slaves, tion. To give stability to establishments, it ocnot only to the government, but they live at the casionally bridled opinions concerning them, but mercy of every individual; they are at once the its punishments, though sanguinary, laid no snares slaves of the whole community and or every part for thoughtless life, and took no man by surprise. of it; and the worst and most unmerciful men are of this the act of Queen Anne, 13 which made :hose on whose goodness they must depend. In it high treason to deny the right of Parliament this situation men not only shrink from the frowns to alter the succession, is a striking example. of a stern magistrate, but are obliged to fly from The hereditary descent of the Crown had been their very species. The seeds of destruction are recently broken at the Revolution by a minority sown in civil intercourse, and in social habitudes. of the nation, with the aid of a foreign force, and The blood of wholesome kindred is infected. a new inheriiance had been created by the auTheir tables and beds are surrounded with snares. thority of the new establishment, which had but All the means given by Providence to make life just established itself. Queen Anne's title, and safe and comfortable are perverted into instru- the peaceable settlement of the kingdom under ments of terror and torment. This species of it, depended wholly upon the constitutional powuniversal subserviency, that makes the very serv. er of Parliament to make this change. The suant who waits behind your chair the arbiter of perstitions of the world and reverence for anyour life and fortune, has such a tendency to de- tiquity, which deserves a better name, were grade and abase mankind, and to deprive them against this power and the use which had been of that assured and liberal state of mind which made of it; the dethroned King of England was a one can make us what we ought to be, that I living in hostile state at our very dcors, supportvow to God, I would sooner bring myself to puted by a powerful monarch at the head of a rival a man to immediate death for opinions I disliked, nation-and our own kingdom itself full of facand so to get rid of the man and his opinions at tious plots and conspiracies, which soon after once, than to fret him with a severish being, showed themselves in open rebellion. tainted with the jail distemper of a contagious If ever, therefore, there was a season when a servitude, to keep him above ground, an anima- narrow jealousy could have been excusable in a red mass of putrefaction, corrupted himself, and government–if ever there was a time when the corrupting xil about him.":19

sacrifice of some private liberty to common seIf these sentiments apply so justly to the rep- curity would have been prudent in a people, it

robation of persecution for opinions was ut such a conjuncture. Yet mark the repinnage pecul.

-even for opinions which the laws, serve of the crown, and the prudence of our an. English iustitu- however absurdly, inhibit--for opin- cestors in the wording of the statute. Although

ions though certainly and maturely en- the denial of the right of Parliament to alter the tertained-though publicly professed, and though succession was tantamount to the denial of all followed up by corresponding conduct; how ir- legitimate authority in the kingdom, and might resistibly do they devote to contempt and exe- be considered as a sort of abjuration to the laws, cration all eaves-dropping attacks upon loose con- yet the statute looked at the nature of man, and versations, casual or convivial, more especially to the private security of individuals in society, when proceeding from persons conforming to all while it sought to support the public society the religious and civil institutions of the state, itself. It did not, therefore, dog men into tav. unsupported by general and avowed profession, erns and coffee-houses, nor lurk for them at corand not merely unconnected with conduct, but ners, nor watch for them in their domestic en. scarcely attended with recollection or conscious- joyments. The act provides, " That every per. ness! Such a vexatious system of inquisition, son who should maliciously, advisedly, and dithe disturber of household peace, began and end-rectly, by writing or printing, affirm that the ed with the Star Chamber. The venerable law Queen was not the rightful Quoen of theso of England never knew it. Her noble, dignified, realms, or that the Pretender had any right or and humane policy soars above the little irregu- title to the Crown, or that any other person had arities of our lives, and disdains to enter our clos- any right or title, otherwise than according to

All private es.

iarly adverse to


19 See Mr Burke's speech at Bristol, page 301.

13 Sixth Anne, c. 7.


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