the crime.

plete, perfect, and render effectual, on the 6th
day of November," spoke the words imputed to
him by the Crown. This is the indictment, and
it is drawn with a precision which marks the true
principle of English criminal law. It does not
merely charge the speaking of the words, leaving
the wicked intention to be supplied and collected
by necessary and unavoidable inference, because
such inference may or may not follow from the
words themselves, according to circumstances,
which the evidence alone can disclose. It charges
therefore the wicked intention as a fact, Intention is
and as constituting the very essence of essential to
the crime, stating, as it must state, to
apprise the defendant of the crime alleged against
him, the overt act, by which such malicious pur-
pose was displayed, and by which he sought to
render it effectual. No man can be criminal
without a criminal intention-actus non facit
reum nisi mens sit rea. God alone can look into
the heart, and man, could he look into it, has no
jurisdiction over it, until society is disturbed by
its actions; but the criminal mind being the source
of all criminality, the law seeks only to punish ac-
tions which it can trace to evil disposition — it
pities our errors and mistakes- makes allow-
ances for our passions, and scourges only our
crimes.

country, This we may safely take in trust, since | the government; he the said defendant, his aforenot one of them, even in the rage of prosecution, said wicked contrivances and intentions to comhas been brought before a criminal court. For myself, I never joined in any of these addresses, but what I have delivered concerning them is all I have been able to discover; and government itself, as far as evidence extends, has not been more successful. I would, therefore, recommend it to his Majesty's servants, to attend to the reflections of an eloquent writer [Mr. Burke] at present high in their confidence and esteem, who has admirably exposed the danger and injustice of general accusations. "This way of proscribing the citizens by denominations and general descriptions, dignified by the name of reason of state, and security for Constitutions and commonwealths, is nothing better at bottom than the miserable invention of an ungenerous ambition, which would fain hold the sacred trust of power, without any of the virtues or energies that give a title to it; a receipt of policy, made up of a detestable compound of malice, cowardice, and sloth. They would govern men against their will; but in that government would be discharged from the exercise of vigilance, providence, and fortitude; and, therefore, that they may sleep on their watch, consent to take some one division of the society into partnership of the tyranny over the rest. But let government, in whatever form it may be, comprehend the whole of its justice, and restrain 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- Concessions of punish by its firmness, all delinquency against its dress to you, did more than ratify the counsel for power, whenever it exists in the overt acts, and these propositions. With a liberality then 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 if 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 bad 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 reason and justice; and a vice, in any Constitution that entertains it, which at one time or other will certainly bring on its ruin."8

Crime charged upon the defendant.

Gentlemen, let us now address ourselves to the cause, disembarrassed by foreign considerations; let us examine what the charge upon the record is, and see how it is supported by the proofs. For, unless the whole indictment, or some one count of it, be in form and substance supported by the evidence, the defendant must be acquitted, however in other respects you may be dissatisfied with his imprudence and indiscretion. The indictment charges, "That the defendant being a person of an impious, depraved, seditious disposition, and maliciously intending to disturb the peace of the kingdom; to bring our most serene Sovereign into hatred and contempt with all the subjects of the realm, and to excite them to discontent against

the Crowl

be asked and expected. These were the sug gestions of his own just and manly disposition, and he confirmed them by the anthority of Mr. Justice Foster, whose works are so deservedly celebrated. But judging of my unfortunate client, not from his own charity, but from the false information of others, he puts a construction upon an expression of this great author which destroys much of the intended effect of his doctrine-a doctrine which I will myself read again to you, and by the right interpretation of which I desire the defendant may stand or fall. In the passage read to you, Foster says, "As to mere words, they differ widely from writings in point of real malignity and proper evidence; they are often the effect of mere heat of blood, which in some natures, otherwise well disposed, carrieth the man beyond the bounds of prudence; they are always liable to great misconstruction, from the

This act does not make a man guilty without the

Mr. Burke's speech at Bristol See page 308. intention.

of common sense, to have proved the previous malice by all previous discourses and previous conduct connected with the accusation. And yet, after having wholly and absolutely failed in this most important part of the proof, we are gravely told that the Crown having failed in the affirmative, we must set about establishing the negative! for that otherwise we are not within the pale or protection of the very first and paramount principles of the law and government of the country!

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, no relative to any act or design," for so he expresses himself, with "words of advice and persuasion in contemplation of some traitorous purpose actually on foot or intended, and in prosecution of it." Comparing this rule of judgment with the evidence given, one would have expected a consent to the most favorable judgment one would have almost considered the quotation as a tacit consent to an acquittal. But Mr. Attorney General, still looking through the false medium of other men's prejudices, lays hold of the words "otherwise well disposed," and ingrafts upon them this most extraordinary requiMode of evad sition. Show me, he says, that Mr. quences of this Frost is otherwise well disposed. Let

the conse

concession.

Having disposed of this stumbling-block in the way of sound and indulgent judgment, we may now venture to examine this mighty offense as it is proved by the witnesses for the Crown, supposing the facts neither to have been misstated from misapprehension, nor willfully exaggerated.

defendant

pears, upon the evidence for the Crown, that Mr. Frost, to say the least, had drunk very freely. But was it with the evil intention imputed to him that he went into this coffee-house to cir

he had premeditated? He could not possibly go home without passing through it; for it is proved that there was no other passage into the street from the room where he had dined. But

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 enI 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 to prove that my client has not been, nor is, disloyal or disaffected? Are we to be deafened with panegyrics upon the English Constitution, and yet to be deprived of its first and distinguishing feat-culate his opinions, and to give effect to designs ure, that innocence is to be presumed until guilt be established? Of what avail is that sacred maxim, if, upon the bare assertion and imputation of guilt, a man may be deprived of a rule of 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 no protection, and who were never accused? If Mr. Frost, by any previous overt acts, by which alone any disposition, good or evil, can be proved, had shown a disposition leading to the offense in question, it was evidence for the Crown. Mr. Wood, 10 whose learning is unquestionable, undoubtedly thought so, when, with the view of crimination, he asked where Mr. Frost had been before the time in question, for he is much too correct to have put an irregular and illegal question in a criminal case: I must, therefore, suppose his right to ask it appeared to him quite clear and established, and I have no doubt that it was so. Why, then, did he not go on and follow it up, by asking what he had done in France what declarations he had made there-or what part he proposed to act here, upon his return? The charge upon the record is, that the words were uttered with malice and premeditation; and Mr. Attorney General properly disclaims a

10 One of the counsel for the prosecution.

stop by design, and collect an audience to scatter sedition ? So far from it, that Mr. Yatman, the very witness against him, admits that he interrupted him as he passed in silence toward the street, and fastened the subject of France upon him. Every word which passed (for the whole is charged upon the very record as a dialogue with this witness) was in answer to his entrapping questions, introduced with the familiarity of a very old acquaintance, and in a sort of banter, too, which gave a turn to the conversation that renders it ridiculous, as well as wicked, to convert it into a serious plan of mischief: "Well,” says Mr. Yatman, "well, Mr. Equality, so you have been in France-when The defendant's did you arrive? I suppose you are red to France, for equality, and no Kings?" "O not to England yes," says Mr. Frost, "certainly I am for equality; I am for no Kings." Now, beyond all question, when this answer was made, whether in jest or in earnest, whether when drunk or sober, it neither had, nor could have, the remotest relation to England or its government. France

language refer

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, or it would not be worth living in. moment divided and in civil confusion 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 found, was self-evidently a snare, to which he answered, contrary to my expectation, that we Illustration from "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 constitu was 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 himself injuriously set upon, wished, as was most natural, to explain himself, by stating to those around him what I have been just stating to you. But all in vain; they were in pursuit of the immortal fame of the very business we are engaged in at this moment, and were resolved to hold their advantage. His voice was immediately drowned by the clamors of insult and brutality; he was 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 in explanation or defense. An indictment was immediately preferred against him, and from that moment the public ear has been grossly and wickedly abused upon the subject, his character shamefully calumniated, and his cause prejudged before the day of trial.

To accuse under

such circumstan of all human coa

ces destructive

5deuce.

al of Hastings going on again? Are we to have no respite? Are we to die of the asthma in this damned corner? I wish to God that the roof would come down and abate the impeachment, Lords, Commons, and all together." Such a wish, proceeding from the mind, would be des perate wickedness, and the serious expression of it a high and criminal contempt of Parliament. Perhaps the bare utterance of such words, even

end and object of all law and justice, forbid the communication of them; because the spirit of a gentleman, which is the most refined morality, either shuts men's ears against what should not be heard, or closes their lips with the sacred scal of honor.

But still, if such expressions had been gravely imputed to me as the result of a malignant mind, seeking the destruction of the Lords and Commons of England, how would they have been treated in the House of Commons on a motion for my expulsion? How! The witness would have been laughed out of the House 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 which such a proceeding altogether character. Many things are, indeed, wrong and 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 happiness 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 the destruction of that security and tranquillity which constitute its very essence every where, but which, till of late, most emphatically characterized the life of an Englishman? Is government to derive dignity and safety by means which render it impossible for any man who has the least spark of honor to step forward to serve it? Is the time come when obedience to the law and correctness of conduct are not a sufficient protection to the subject, but that he must measure his steps, select his expressions, and adjust his very looks in the most common and private intercourses of life? Must an English gentleman in future fill his wine by a measure, lest, in the openness of his soul, and while believing his neighbors are joining with him in that happy relaxation and freedom of thought which is the prime blessing of life, he should find his character blasted, and his person in a prison? Does any man put such constraint upon himself in the most private moment of his life, that he would be contented to have his loosest and lightest words recorded, and set in array against him in a court

danger from lib

This tacit but well-understood and delightful compact of social life is perfectly con- Society in no sistent with its safety. The security erity on the of free governments, and the unsus- subject pecting confidence of every man who lives under them, are not only compatible, but inseparable. It is easy to distinguish where the public duty calls for the violation of the private one. Crim inal intention, but not indecent levities-not even grave opinions unconnected with conduct, are to be exposed to the magistrate; and when men (which happens but seldom), without the honor or the sense to make the due distinctions, force complaints upon governments which they can neither approve of nor refuse to act upon, it becomes the

11 The King's Bench sat in the small Court of Com mon Pleas.

office of juries-as it is yours to-day-to draw | ets without a warrant founded upon complaint. the true line 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 our conversations, and punishes only overt acts of contempt and disobedience to her authority.

Gentlemen, the misery and disgrace of society, under the lash of informers, running before the law and hunting men through the privacies of lomestic life, is described by a celebrated speaker [Mr. Burke] with such force and beauty of eloquence, that I will close my observations on this part of the subject by repeating what can not, I am persuaded, be uttered among English;nen without sinking deep into their hearts: "A mercenary informer knows no distinction. Under such a system, the obnoxious people are slaves, not only to the government, but they live at the mercy of every individual; they are at once the slaves of the whole community and or every part of it; and the worst and most unmerciful men are those on whose goodness they must depend. In this situation men not only shrink from the frowns of a stern magistrate, but are obliged to fly from their very species. The seeds of destruction are sown in civil intercourse, and in social habitudes. The blood of wholesome kindred is infected. Their tables and beds are surrounded with snares. All the means given by Providence to make life safe and comfortable are perverted into instruments of terror and torment. This species of universal subserviency, that makes the very servant who waits behind your chair the arbiter of your life and fortune, has such a tendency to degrade and abase mankind, and to deprive them of that assured and liberal state of mind which alone can make us what we ought to be, that I vow to God, I would sooner bring myself to put a man to immediate death for opinions I disliked, and so to get rid of the man and his opinions at once, than to fret him with a feverish being, tainted with the jail distemper of a contagious servitude, to keep him above ground, an animated mass of putrefaction, corrupted himself, and corrupting all about him."12

sions of law.

Gentlemen, this is not the specious phrase of an advocate for his client; it is not Evidence of this even my exposition of the spirit of from provi our Constitution; but it is the phrase and letter of the law itself. In the most critical conjunctures of our history, when government was legislating for its own existence and continuance, it never overstepped this wise moderation. To give stability to establishments, it occasionally bridled opinions concerning them, but its punishments, though sanguinary, laid no snares for thoughtless life, and took no man by surprise.

Of this the act of Queen Anne,13 which made it high treason to deny the right of Parliament to alter the succession, is a striking example. The hereditary descent of the Crown had been recently broken at the Revolution by a minority of the nation, with the aid of a foreign force, and a new inheritance had been created by the authority of the new establishment, which had but just established itself. Queen Anne's title, and the peaceable settlement of the kingdom under it, depended wholly upon the constitutional power of Parliament to make this change. perstitions of the world and reverence for antiquity, which deserves a better name, were against this power and the use which had been made of it; the dethroned King of England was living in hostile state at our very dcors, supported by a powerful monarch at the head of a rival nation-and our own kingdom itself full of factious plots and conspiracies, which soon after showed themselves in open rebellion.

The su

If ever, therefore, there was a season when a narrow jealousy could have been excusable in a government-if ever there was a time when the sacrifice of some private liberty to common se

If these sentiments apply so justly to the rep-curity would have been prudent in a people, it

All private er. pionage pecul arly adverse to

tions.

robation of persecution for opinions was at such a conjuncture. Yet mark the re-even for opinions which the laws, serve of the crown, and the prudence of our anEnglish institu. 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 tavunsupported 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 enscarcely attended with recollection or conscious- joyments. The act provides, "That every perSuch 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 of England never knew it. Her noble, dignified, and humane policy soars above the little irreguarities of our lives, and disdains to enter our clos

ness!

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

Y Y

Queen was not the rightful Queen of these realms, or that the Pretender had any right or title to the Crown, or that any other person had any right or title, otherwise than according to

13 Sixth Anne, c. 7.