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constitutes the essence of the criine.
if it hal. omitted to charge, we should not have on his followers, ino person, to the asowed do troubled you with any defense at all, because no struction of all the rest. There could, therefore, judgment could have been given on so defective be no doubt of his purpose and intention, nor any an indictment. For the statute never meant to great doubt that the perpetration of such purpose put an unarmed assembly of citizens on a footing was, from its generaliiy, high treason, it
perpe: with armed rebellion; and the crime, whatever trated by such a force as distinguishes a felonious it is, must always appear on the record to war. riot from a treasonable levying of war. The rant the judgment of the court.
principal doubt, therefore, in that case was, It is certainly true that it has been held to be whether such an unarmed, riotous force wis war, What consti matter of evidence, and dependent on within the meaning of the statute; and on that til thermomis circumstances, what numbers, or spe- point very learned men have differed ; nor sha!!
cies of equipment and order, though I attempt to decide between them, because it. not the regular equipment and order of soldiers, this one point they all agree. Gentlemen, I beshall constitute an army, so as to maintain the seech you to attend to me here. I say on this averment in the indictment of a warlike array; point they all agree, that it is the intention of and, likewise, what kind of violenoe, though not assembling them which forms the guilt of trea. pointed at the King's person, or the existence son. I will give you the words of high author. of the government, shall be construed to be war ity, the learned Foster, whose private opinions against the King. But as it has never yet been will, no doubt, be pressed upon you as a doctrine maintained in argument, in any court of the and law, and which, if taken together, as all kingdom, or even speculated upon in theory, opinions ought to be, and not extracted in smugthat a multitude, without either weapons offens- gled sentences to serve a shallow trick, I am įvo or defensive of any sort or kind, and yet not contented to consider as authority. supplying the want of them by such acts of vio- That great judge, immediately after support. lence as multitudes sufficiently great can achieve ing the case of Damaree, as a levy. The intension without them, was a hostile army within the ing war within the statute, against statute; as it has never been asserted by the the opinion of Hale in a similar case, wildest adventurer in constructive treason, that namely, the destruction of bawdy-houses, which a multitude, armed with nothing, threatening happened in his time, says, “The true criterion, nothing, and doing nothing, was an army levy- therefore, seems to beQuo animo did the parties ing war; I am entitled to say that the evidence assemble ?—with what intention did they meet?” does not support the first charge in the indict. On that issue, then, in which I am supported ment; but that, on the contrary, it is manifestly by the whole body of the criminal law of England, false — false in the knowledge of the Crown, concerning which there are no practical precewbich prosecutes it-false in the knowledge of dents of the courts that clash, nor even abstract every man in London, who was not bed-ridden opinions of the closet that differ, I come forth on Friday the 2d of June, and who saw the with boldness to meet the Crown. For, even peaceable demeanor of the Associated Protest- supposing that peaceable multitude—though not
hostilely arrayed—though without one species of But you will hear, no doubt, from the Solicit- weapon among them-though assembled with
or General (for they have saved all out plot or disguise by a public advertisement, ter inapplica. their intelligence for the reply) that exhorting, nay, commanding peace, and inviting
fury supplies arms; furor arma mine the magistrates to be present to restore it, if strat ; and the case of Damareet will, I sup-broken-though composed of thousands who are oose, be referred to; where the people assem- now standing around you, unimpeached and unbled had no banners or arms, but only clubs and reproved, yet who are all principals in treason, bludgeons : yet the ringleader, who led them on if such assembly was treason ; supposing, I say, to mischief, was adjudged to be guilty of high this multitude to be, nevertheless, an army with-. treason for levying war. This judgment it is in the statute, still the great question would renot my purpose to impeach, for I have no time main behind, on which the guilt or innocence of for digression to points that do not press upon the accused must singly depend, and which it is
In the case of Damaree, the mob, though your exclusive province to determine, namely, not regularly armed, were provided with such whether they were assembled by my noble client weapons as best suited their mischievous designs. for the traitorous purpose charged in the indictTheir designs were, besides, open and avowed, ment? For war must not only be levied, but it and all the mischiof was done that could have must be levied against the King in his realm; i. been accomplished, if they had been in the com- l., either directly against his person to alter the pietest armor. They burned Dissenting meeting. Constitution of the government, of which he is houses protected by law, and Damaree was tak lhe head, or to suppress the laws committed to en at their head, in flagrante delicto (in the crime his execution by rebellious force. You must find itself ], with a torch in hisshand, not only in the that Lord George Gordon assembled these men very act of destroying one of them, but leading
Case of Dama.
5 To constitute a treasonable levying of war there • In this case, a mob assembled for the purpose must be an insurrection; there must be force accomof destroying all the Protestant Disgenting meeting. panying that insurrection; and it must be for an bouses, and actually pulled d:wn two.—8 State Tri-object of a general nature. Regina v. Frost, 9 Car als, 218, Foster, 208.
rington and Payne, 129.
6 Hale, 132. Ss
with that traitorous intention. You must find not Here an immense multitude was, beyend all merely a riotous, illegal petitioning—not a tu. doubt, assembled on the second of These prine:iples multuous, indecent importunity to influence Par- June. But whether he that assem- animated end the price liament, not the compulsion of motive, from see- bled them be guilty of high treason, oner. ing so great a body of people united in sentiment of a high misdemeanor, or only of a brcach of and clamorous supplication — but the absolute, the act of King Charles the Secondi against tvunequivocal compulsion of force, from the hostile multuous petitioning (if such an act still exists), acts of numbers united in rebellious conspiracy depends wholly upon the evidence of his purpose and arms.
in assembling them, to be gathered by you, and This is the issue you are to try, for crimes of by you alone, from the whole tenor of his conall denominations consist wholly in the purpose duct; and to be gathered, not by inference, or of the human will producing the act. “ Actus probability, or reasonable presumption, but in non facit reum nisi mens sit rea.” The act does the words of the act, provably; that is, in the not constitute guilt, unless the mind be guilty. full, unerring force of demonstration. You are This is the great text from which the whole called, upon your oaths, to say, not whether Lord moral of penal justice is deduced. It stands at George Gordon assembled the multitudes in the the top of the criminal page, throughout all the place charged in the indictment, for that is not volumes of our humane and sensible laws, and denied; but whether it appears, by the facts proLord Chief Justice Coke, whose chapter on this duced in evidence for the Crown when confrontorime is the most authoritative and masterly of ed with the proofs which we have laid before all his valuable works, ends almost every sen- you, that he assembled them in hostile array lence with an emphatical repetition of it. and with a hostile mind, to take the laws into The indictment must charge an open act, be- his own hands by main force, and to dissolve the
cause the purpose of the mind, which Constitution of the government, unless his petimust be proved is the object of trial, can only be tion should be listened to by Parliament. some open act known by actions. Or, again to use That is your exclusive province to determine. the words of Foster, who has ably and accurate. The court can only tell you what acts the law, ly expressed it, "the traitorous purpose is the in its general theory, holds to be high treason, treason; the overt act, the means made use of on the general assumption that such acts proto effectuate the intentions of the heart." But ceed from traitorous purposes. But they must why should I borrow the language of Foster, or leave it to your decision, and to yours alone, of any other man, when the language of the in- whether the acts proved appear, in the present dictment itself is lying before our eyes ? What instance, under all the circumstances, to havo does it say? Does it directly charge the overt arisen from the causes which form the essence act as in itself constituting the crime ? No; it of this high crime. charges that the prisoner “maliciously and trai- Gentlemen, you have now heard the law of torously did compass, imagine, and intend to treason; first, in the abstract, and secraise and levy war and rebellion against the ondly, as it applies to the general seatKing ;" this is the malice prepense of treason; ures of the case; and you have heard it with as and that to fulfill and bring to effect such traitor- much sincerity as if I had addressed you upon ous compassings and intentions, he did, on the my oath from the bench where the judges sit. day mentioned in the indictment, actually assem- I declare to you solemnly, in the presence of ble them, and levy war and rebellion against the that great Being at whose bar we must all here. King. Thus the law, which is made to correct after appear, that I have used no one art of an and punish the wickedness of the heart, and not advocate, but have acted the plain unaffected part the unconscious deeds of the body, goes up to of a Christian man, instructing the consciences the fountain of human agency, and arraigns the of his fellow-citizens to do justice. If I have Jurking mischief of the soul, dragging it to light deceived you on this subject, I am myself deby the evidence of open acts. The hostile mind ceived; and if I am misled through ignorance, is the crime; and, therefore, unless the matters my ignorance is incurable, for I have spared no that are in evidence before you do, beyond all
By 13 Car. II., st. 1, c. 5, passed in consequence doubt or possibility of error, convince you that the prisoner is a determined traitor in his heart, liament of 1640, it is provided that no petition to the
of the tumults on the opening of the memorable Par. he is not guilty.
King or either House of Parliament, for any alteraIt is the same principlo which creates all the tion in Charch or State, shall be signed by above The same is various degrees of homicide, from that twenty persons, unless the matter thereof be ap side and outli- which is excusable to the malignant proved by three justices of the peace, or the major
guilt of murder. The fact is the same part of the grand jury in the county; and in Lon. in all. The death of the man is the imputed don by the Lord Mayor, Aldermen, and Common crime; but the intention makes all the differ- Council: nor shall any petition be presented by ence; and he who killed him is pronounced a
more than ten persons at a time. But under these murderer—a simple felon—or only an unfortu- w. and M., st. 2, c. 2, that the subject bath a right
regulations, it is declared by the Bill of Rights, i nate man, as the circumstances, by which his to petition. Lord Mansfield told the jury that the mind has been deciphered to the jury, show it court were clearly of opinion that this statute, 13 have been cankered by delibernte wickedness, Car. II., was not in any degree affected by the Bip or stirred up by sudden passions
of Rights, but was stil in force. Dougl, 17.
test of these
pains to understand it. I am not stiff in opin- It is not my purpose to recall to your minde ions; but before I change any of those that I the fatal effects which bigotry has, in furmer bave given you to-day, I must see some direct days, produced in this island. I will not follow monument of justice that contradicts them. For the example the Crown has set me, by making the law of England pays no respect to theories, an attack upon your passions, on subjects foreign however ingenious, or to authors, however wise; to the object before you. I will not call your atand therefore, unless you hear me refuted by a tention from those flames, kindled by a villainous series of direct precedents, and not by vague banditti (which they have thought fit, in defiance doctrine, if you wish to sleep in peace, follow me. of evidence, to introduce), by bringing beforg
II. And now the most important part of our your eyes the more cruel flames, in which the 1:5 evidence task begins, namely, the application bodies of our expiring, meek, patient, Christian oraght to the of the evidence to the doctrines I have fathers were, little more than a century ago, principles. laid down. For trial is nothing more consuming in Smithfield. I will not call up from than the reference of facts to a certain rule of the graves of martyrs all the precious holy blood action, and a long recapitulation of them only that has been spilled in this land, to save its estabserves to distract and perplex the memory, with lished government and its reformed religion from out enlightening the judgment, unless the great the secret villainy and the open force of Papists. standard principle by which they are to be meas. The cause does not stand in need even of such ired is fixed, and rooted in the mind. When honest arts; and I feel my heart too big voluntathat is done (which I am confident has been done rily to recite such scenes, when I reflect that by you), every thing worthy of observation falls some of my own, and my best and dearest pro. naturally into its place, and the result is safe and genitors, from whom I glory to be descended, certain.
ended their innocent lives in prisons and in exGentlemen, it is already in proof before you ile, only because they were Protestants. Ileasons of (indeed it is now a matter of history), Gentlemen, whether the great lights of sci. tangon't lie that an act of Parliament passed in the ence and of commerce, which, since Tliese laws very Cattolice session of 1778, for the repeal of cer- those disgraceful times, have illu-elle opere tain restrictions, which the policy of our ances- minated Europe, may, by dispelling Saville's bill. tors had imposed upon the Roman Catholic re. these shocking prejudices, have rendered the Paligion, to prevent its extension, and to render its pists of this day as safe and trusty subjects as limited toleration harmless; restrictions, imposed those who conform to the national religion estabnot because our ancestors took upon them to lished by law, I shall not take upon me to determpronounce that faith to be offensive to God, but ine. It is wholly unconnected with the presbecause it was incompatible with good faith to ent inquiry. We are not trying a question either man-being utterly inconsistent with allegiance of divinity or civil policy; and I shall, therefore, to a Protestant government, from their oaths and not enter at all into the motives or merits of the obligations, to which it gave them not only a act that produced the Protestant petition to Parrelease, but a crown of glory, as the reward of liament. It was certainly introduced by pertreachery and treason.
sons who can not be named by any good citizen It was, indeed, with astonishment that I heard without affection and respect. But this I will the Attorney General stigmatize those wise reg. say, without fear of contradiction, that it was ulations of our patriot ancestors with the title of sudden and unexpected ; that it passed with un. factious and cruel impositions on the consciences common precipitation, considering the magniand liberties of their fellow-citizens. Gentle. tude of the object; that it underwent no discus. men, they were, at the time, wise and salutary sion; and that the heads of the Church, the conregulations ; regulations to which this country stitutional guardians of the national religion, owes its freedoin, and his Majesty his crown-a were never consulted upon it. Under such circrown which he wears under the strict entail of cumstances, it is no wonder that many sincere professing and protecting that religion which Protestants were alarmed; and they had a right ihey were made to repress; and which I know to spread their apprehensions. It is the privimy noble friend at the bar joins with me, and lege and the duty of all the subjects of England with all good men, in wishing that he and his to watch over their religious and civil liberties, posterity may wear forever.8
in order to enforce his next leading thought; name. After the strong statements of Burke respecting ly, that the Protestant Association originated in justthis law (see p. 299), the reader will be surprised at ifiable feelings, a point which was important to the these assertions of Mr. Erskine. He was probably in- defense of his client. This mode of shaping one Auenced by his feelings as a Scotchman whose ances. part of his speech to prepare the way for and sup. tors had been cruelly persecuted by the Catholics. port of another, is one of the most admirable quali Twenty-six years after, when Lord Chancellor, he ties of Mr. Erskine, and is worthy of being studied was opposed to allowing Catholic officers in England with great attention by the young orator. to hold commissions in the army, as they had been • The bill was brought in by Sir George Saville permitted to do in Ireland since 1793 ; declaring that and supported, among others, by Mr. Dunning, Mr on this subject he thought “religiously and morally Thurlow, and Lord Beauchamp, and passed into ar exactly as the King did." He here gives great act without any opposition the House of Com prominence to his views of the original necessity of mons, and with very slight opposition in the Lords the law, confirming them by pointed references in the and the King was known to have been fr.vorable next paragraph to the persecuting spirit of Popery to it
deaign of the Protestant
and to approach either their representatives or which he had not been a witness. He was at the Throne with their fears and their complaints Newgate, the Fleet, at Langdale's, and at Cole. ma privilege which has been bought with the man Street; at the Sardinian Embassador's, and dearest blood of our ancestors, and which is con- in Great Queen Street, Lincoln's Inn Fields. firmed to us by law, as our ancient birth-right What took him to Coachmakers' Hall? Ho and inheritance.
went there, as he told us, to watch their pro. Soon after the repeal of the act, the Protest-ceedings, because he expected no good from Origin and ant Association began, and, from small them; and to justify his prophecy of evil, he said,
beginnings, extended over England and on his examination by the Crown, that, as early Association. Scotland. A deed of association was as December, he had heard some alarming resigned, by all legal means to oppose the growth publican language. What language did he reof Popery; and which of the advocates for the member? Why, that the Lord Advocate of Crown will stand up and say that such an union Scotland was called only Harry Dundas!" Findwas illegal? Their union was perfectly consti- ing this too ridiculous for so grave an occasion, tutional; there was no obligation of secrecy; he endeavored to put some words about the their transactions were all public; a committee breach of the King's coronation oath' into the was appointed for regularity and correspondence; prisoner's mouth, as proceeding from himself, and circular letters were sent to all the dignita- which it is notorious he read out of an old Scotch ries of the Church, inviting them to join with book, published near a century ago, on the abdithem in the protection of the national religion. cation of King James the Second.
All this happened before Lord George Gordon Attend to his cross-examination. He was sure was a member of, or the most distantly connect he had seen Lord George Gordon at Greenwood's ed with it; for it was not till November, 1779, room in January; but when Mr. Kenyon, whc that the London Association made him an offer knew Lord George had never been there, advised of their chair, by a unanimous resolution, com- him to recollect himself, he desired to consult municated to him, unsought and unexpected, in his notes. First, he is positively sure, from his & public letter, signed by the secretary in the memory, that he had seen him there: then he name of the whole body; and from that day, to says, he can not trust his memory without reser
the day he was committed to the Tow- ring to his papers. On looking at them, they Gordon as its er, I will lead him by the hand in your contradict him; and he then confesses that he
view, that you may see there is no never saw Lord George Gordon at Greenwood's
blame in him. Though all his be- room in January, when his note was taken, nor havior was unreserved and public, and though at any other time. But why did he take notes? watched by wicked men for purposes of venge. He said it was because he foresaw what would ance, the Crown has totally failed in giving it happen. How fortunate the Crown is, gentle such a context as can justify, in the mind of any men, to have such friends to collect evidence by reasonable man, the conclusion it seeks to estab- anticipation! When did he begin to take notes ? !ish.
He said, on the 21st of February, which was the This will fally appear hereafter; but let us first time he had been alarmed at what he had
first attend to the evidence on the part seen and heard, although, not a minute before, tif evidence for of the Crown.
he had been reading a nete taken at Greenwood's The first witness to support this room in January, and had sworn that he bad prosecution is,
attended their meetings, from apprehensions of William Hay-a bankrupt in fortune he ac- consequences, as early as December. knowledges himself to be, and I am afraid he is Mr. Kenyon, who now saw him bewildered in a bankrupt in conscience. Such a scene of im- a maze of falsehood, and suspecting his notes 10 pudent, ridiculous inconsistency would have ut- have been a villainous fabrication to give the show terly destroyed his credibility in the most trifling of correctness to his evidence, attacked him with civil suit; and I am, therefore, almost ashamed a shrewdness for which he was wholly unpreto remind you of his evidence, when I reflect pared. You remember the witness had said lihat that you will never suffer it to glance across he always took notes when he attended any meetyour minds on this solemn occasion.
ings where he expected their deliberations might This man, whom I may now, without offense be attended with dangerous consequences. “Give or slander, point out to you as a dark Popish me one instance," says Mr. Kenyon, "in the spy, who attended the meetings of the London whole course of your life, where you ever took Association to pervert their harmless purposes, notes before.'' Poor Mr. Hay was thunder. conscious that the discovery of his character struck; the sweat ran down his face, and his would invalidate all his testimony, endeavored at countenance bespoke despair-not recollection : first to conceal the activity of his zeal, by deny. "Sir, I must have an instance; tell me when and ing that he had seen any of the destructive where ?" Gentlemen, it was now too late ; some scenes imputed to the Protestants. Yet, almost instance he was obliged to give, and, as it was in the same breath, it came out, by his own con- evident to every body that he had one still lo session, that there was hardly a place, public or choose, I think he might have chosen a better. private, where riot had erected her standard, in " He had taken notes at the General Assembly of which he had not been ; nor a house, prison, or 10 Hay swore that Lord Gordon bad declared that adapel that was destroyed, to the demolition of the King had broken his coronation gath.
the Church of Scolland, six-and-twenty years bea | House of Commons. What took hire there ! fore!!" What! did he apprehend dangerous He thought himself in danger; and therefore, consequences from the deliberations of the grave says Mr. Kenyon, you thrust yourself voluntarily elders of the Kirk ? Were they levying war into the very center of danger. That would not against the King? At last, when he is called do. Then he had a particular friend, whom he upon to say to whom he communicated the in- knew tn be in the lobby, and whom he apprehendtelligence he had collected, the spy stood con-ed to be in danger. "Sir, who was that partic "sessed indeed. At first he relused to tell, saying ular friend? Out with it. Give us his name inhe was his friend, and that he was not obliged to stantly." All in confusion again. Not a word give him up; and when forced at last to speak, it to say for himself; and the name of this person came out to be Mr. Butler, a gentleman univer- who had the honor of Mr. Hay's friendship, will sally known, and who, from what I know of him, probably remain a secret forever. 12 I may be sure never employed him, or any other It may be asked, are these circumstances maspy, because he is a man every way respectable, terial ? and the answer is obvious: they are but who certainly is not only a Papist, but the material; because, when you see a witness runperson who was employed in all their proceed- ning into every hole and corner of falsehood, and, ings, to obtain the late indulgences from Parlia- as fast as he is made to bolt out of one, taking ment.12 He said Mr. Butler was his particular cover in another, you will never give credit to friend, yet prosessed himself ignorant of his re- what that man relates, as to any possible matter ligion. I am sure he could not be desired to which is to affect the life or reputation of a selconceal it. Mr. Butler makes no secret of his low-citizen accused before you. God forbid that religion. It is no reproach to any man who lives you should. I might, therefore, get rid of this the life he does. But Mr. Hay thought it of wretch altogether without making a single remoment to his own credit in the cause, that he mark on that part of his testimony which bears himself might be thought a Protestant, uncon- upon the issue you are trying; but the Crown nected with Papists, and not a Popish spy. shall have the full benefit of it all. I will de
So ambitious, indeed, was the miscreant of fraud it of nothing he has said. Notwithstand being useful in this odious character, through ev. ing all his folly and wickedness, let' as for the ery stage of the cause, that, after staying a little present take it to be true, and see what it amounts in St. George's Fields, he ran home to his own What is it he states to have passed at Coachhouse in St. Dunstan's church-yard, and got upon makers' Hall? That Lord George Gordon dethe leads, where he swore he saw the very same sired the multitude to behave with unanimity and man carrying the very same flag he had seen in firmness, as the Scotch had done. Gentlemen, the fields. Gentlemen, whether the petitioners there is no manner of doubt that the Scotch be. employed the same standard-man through the haved with unanimity and firmness in resisting whole course of their peaceable procession is cer. the relaxation of the penal laws against Papists, tainly totally immaterial to the cause, but the cir- and that by that unanimity and firmness they cumstance is material to show the wickedness of succeeded ;13 but it was by the constitutional the man. “How," says Mr. Kenyon, “ do you unanimity and firmness of the great body of the know that it was the same person you saw in people of Scotland whose example Lord George the fields ? Were you acquainted with him ?" Gordon recommended, and not by the riots and
" How then ?” “Why, he looked like burning which they attempted to prove bad been a brewer's servant." Like a brewer's servant ! committed in Edinburgh in 1778. “What, were they not all in their Sunday's I will tell you myself, gentlemen, as one of the clothes ?" “Oh! yes, they were all in their people of Scotland, that there then existed, and Sunday's clothes." "Was the man with the flag still exist, eighty-five societies of Protestants, who then alone in the dress of his trade ?” “No." have been, and still are, uniformly firm in oppos“Then how do you know he was a brewer's serv- ing every change in that system of laws estabant ?" Poor Mr. Hay!-nothing but sweat and lished to secure the Revolution; and Parliament confusion again! At last, after a hesitation, gave way in Scotland to their united voice, and which every body thought would have ended in not to the fire-brands of the rabble. It is the duty his running out of court, he said, " he knew him of Parliament to listen to the voice of the people, to be a brewer's servant, because there was some for they are the servants of the people. And thing particular in the cut of his coat, the cut of when the Constitution of church or state is behis breeches, and the cut of his stockings !" lieved, whether truly or falsely, to be in danger,
You see, gentlemen, by what strange means I hope there never will be wanting men (notvillainy is detected. Perhaps he might have es- withstanding the proceedings of to-day) to desire caped from me, but he sunk under that shrewd the people to persevere and be firm. Gentlemen, ness and sagacity, which ability, without long has the Crown proved that the Protestant breth. habits, does not provide. Gentlemen, you will ren of the London Association fired the massnot, I am sure, forget, whenever you see a man about whose apparel there is any thing particu- Mr. Erskine sists this evidence and detects its falso
12 Nothing could be finer than the way in whicb lar, to set him down for a brewer's servant.
hood. Mr. Hay alterward went to the lobby of the 13 The violent popular opposition manifested to
ward the proposed act extending the Roman Cath"Mr. Charles Butler, author of the Reminiscences. olic Relief Bill to Scotland, caused it to be aboodoond