Gentlemen, it is not perhaps very necessary, restraint upon the person of the king, the in but still it may be no unpleasing circumstance tention to dethrone him, or the intention to to state to you, that there is another circum- overturn his government, did, or did not, nestance favourable to the due determination of cessarily carry with it the intention of putting this inquiry, namely, that the trial is not an end to his life, is now removed from any likely to be extended to any inordinate length; necessity of inquiry, or of argument; because, and I trust, that evidence of no very great as I have stated, this act having made these extent will fully develope the whole of the two intentions-independent of any of their case. All that will be necessary to attend to consequences-substantive acts of treason in the investigation of it, will be sufficiently themselves, there will be no necessity for compressed, to enable us to dispose of it with-raising that question. For if the evidence out the inconvenience and interruption of an should satisfy your minds, that those overt adjournment. But I must remember, that acts which I shall presently state, or any of any superfluous observations on my part, will them, are proved to have been done by the tend to impair this advantage; I trust, how- prisoner, with any one of these three intenever, that those which I have submitted to tions, the charge will be proved, and your you, will not be deemed superfluous. They painful duty of pronouncing your verdict have been offered certainly, with no other ob- against him, will necessarily arise. ject, than that while I was awakening your minds to the important nature of your present duties, I might remove every possible degree of prejudice which might exist in them, either as against the prisoner, or against the charge, and thereby produce that unbiassed and unprejudiced state of impartiality, which is, on all occasions, so essential to justice.

I shall now proceed to state to you, with as much brevity as I can, the outlines of the case, and of the evidence by which the charge will be proved; but I am sure you would not wish me, for the sake of brevity, to sacrifice the more important object of perspicuity. I shall endeavour, in as narrow a compass as I can, to possess you with those facts and those observations, which seem to me the best calculated to enable you to appreciate the evidence as you shall hear it, and to apply it with its due weight to the charge.

You probably are aware, gentlemen, that however criminal the intention may be, the law requires that such criminal intention should be manifested by some act, before it can be fixed upon any man,-by some overt act, as the law technically calls it,-some overt act tending to indicate, and to manifest that intention, some step taken, some act done in prosecution, and in fartherance of such intention.

The overt acts, in this case, as they have been already stated to you, I shall state but shortly. I may describe them as falling under two different classes. The first four overt acts of treason, stating a conspiracy by various modes, to seduce soldiers and others from their allegiance, and to make them become confederates with the prisoners, in the prosecution of their treasonable designs; and the other four counts, constituting the second Gentlemen, the indictment against the class, detail various meetings for the purpose prisoner-the substance of which has been of carrying into effect, the treasonable intenvery accurately and distinctly stated to you tions that are there laid. The first overt act already-contains a charge of high treason charges them with conspiring to seduce solalleged against him in three distinct counts, diers and others from their allegiance and each of them alleging a distinct treasonable duty, and to seduce them to assist the prisoner intention. The first count containing the in a traitorous attempt to be made to subvert charge of intending and compassing the death the government and constitution, and to kill of the king, is framed under the old statute of the king. The second charges them with atking Edward 3rd. The second charge, of in- tempting to seduce the persons there named, tending and compassing the imprisonment to take oaths and engagements to become and restraint, and the third, the deposition of members of associations, formed for this treathe king, are framed under a more recent act sonable purpose. The third charges them of parliament, that has passed subsequently with having copies of oaths and engagements to the late trials of high treason at the Old in their custody, for the purpose of being adBailey; under which act of parliament, the ministered to persons, to engage them to beintention to imprison and restrain, and the come members of such confederacy. And the intention to dethrone, are made substantive fourth charges them with actually administeracts of treason. A fortunate circumstance, ing such oaths for such purposes. The fifth, perhaps, this likewise for your inquiry; be- which begins the other class of overt acts, cause, that statute having made these two in- charges them with conspiring (by lying in tentions distinct independent and substantive wait) to attack the king and murder him, and acts of treason, it is very probable, as it cer- for that purpose, with meeting and consulttainly is very desirable, that the fact will go ing as to the means of effectuating that purto you, unembarrassed with any disputed pose. The sixth charges them with conspirquestion in point of law, between the counseling to attack and seize the Bank, and the on one side, and the other. For whatever question may upon former occasions have been raised, how far the intention to put any

Tower, and other magazines, where it was likely they might find the means of furnishing themselves with arms, with which they might

resist the king's forces. The seventh charges them with conspiring and agreeing to procure arms, to enable them to exert themselves in the same manner. The eighth charges them with agreeing upon the day, when the king should next go to meet his parliament, that he should be laid in wait for, attacked, and shot, at the same time, that the Tower should be attacked, the Bank, and other depositaries of arms; and that the usual coaches which set out from this town, should be stopped for the purpose of giving notice to their confederates in the country, by whom they expected to be supported.

the way of a conspiracy, and there is this peculiarity attending the charge of a conspiracy, that on the trial of that charge, there are two questions submitted to the jury to which consequently the evidence is to be applied. The first a general question, whether any such conspiracy has existed or not? The next, whether, supposing that conspiracy to have existed, the individual against whom it is charged, is proved to have been a party to it.

With respect to the first question whether or not any such conspiracy has existed, it is obvious that evidence of the act of any of the conspirators is admissible upon the trial of every one, whether done in the presence or not of the prisoner under trial, because the extent, the nature, and the object of a conspiracy, to be carried on by the agency of a great number of individuals, cannot by any other means be discovered than by proof of the acts of those individuals. But whether or not that crime, so proved upon the first and general question to have had existence, is fairly applied to the prisoner under trial, must depend upon evidence strictly applicable to himself, that is, evidence, of his own acts or of acts done with his privity and knowledge; and it is only by such evidence that any individual can be found guilty of that crime of conspiracy, the existence of which may have been proved by general evidence.

Gentlemen, it will here be convenient to state the nature of an overt act. To constitute an overt act of treason, it is not necessary that the act should, in its immediate and necessary consequences, lead to the completion of the design: but there can be hardly any act done with the intention of effectuating a treasonable design, that is in any degree capable of conducing to its completion, but what may be an overt act of high treason, let the act, independent of such intention, be ever so innocent in itself: for instance, the getting into a boat upon the river Thames, in itself, independent of any intention with which it might be connected, nothing could be a more innocent act; yet the act of getting into a boat upon the river Thames, with aview afterwards of going to France, for the purpose of procuring an invasion of this country, was the overt Having thus endeavoured to lay before you act charged upon lord Preston, upon which the nature of this indictment, and the mode he was convicted. Nothing can be a more by which the charges are capable of being innocent act in itself, than putting a letter supported in evidence, I shall proceed to state into the post, but if that letter con- to you the facts of the case. It may perhaps tains in it some incitement and encourage- be convenient to give you again the names of ment to acts which it would be treason in the the different persons who are charged in this person writing the letter to incite or en- indictment; they are the prisoner at the bar, courage; putting such letter into the post, John Wood, Thomas Broughton, John Francis, with knowledge of its contents, is an overt Thomas Phillips, Thomas Newman, Daniel act of high treason, and is the act on which Tyndall, John Doyle, James Sedgwick Wratdoctor Hensey, and others have been con- ten, William Lander, Arthur Graham, Savicted; so here nothing could be a more in-muel Smith, and John Macnamara; of these nocent act than having a card or paper in a man's pocket; but if that card or paper contains the form of a treasonable engagement, purporting to bind persons to such engage ment for the purpose of associating to carry into effect some treasonable purpose, the mere possession of that paper, with an intention of so employing it, is, I apprehend, clearly and unquestionably, an overt act of treason.

Having thus explained to you the nature of this indictment, and the charges which it contains, there is one other observation connected in a degree with the legal consideration of this trial, which I would just state before I proceed to the facts; and that is, that the treason is charged to be accomplished by

*See lord Preston's case, antè, Vol. 12, p.

645.

+ See the case of Dr. Hensey, ante, Vol. 19, p. 1341; and the case of Jackson, Vol. 25, p. 835.

thirteen prisoners, eleven, including the prisoner at the bar, were taken up on the 16th of November, at the Oakley Arms, at one of the meetings, charged by this prosecution to have been treasonable. Gentlemen, although, for reasons that I shall presently state to you, I propose in the course of this evidence to begin with proving the seizure of the prisoner at this place, and the circumstances attending that seizure; yet I think it will be more convenient, in point of narration, to begin with what I shall have to detail to you of their transactions at an earlier period, and then bring down the history of the conspiracy to the period of this apprehension; and in endeavouring to detail to you the earlier transactions of these conspirators, I shall not take you to a more distant period than somewhere about the spring of the last year. I think it will appear that about the month of March, in the last year, a detachment of the guards, to which one of these prisoners, John Francis,

belonged, returned from duty at Chatham barracks, and you will find, shortly after their return, the clearest evidence of the existence of a conspiracy, for the purpose of overturning the government and constitution of this country.

Gentlemen, you will find this John Francis whom I have named, and Wood, another of the prisoners, who is a soldier likewise, and a particularly active member of this conspiracy, proved to be frequently endeavouring to seduce soldiers and others from their allegiance to become members of the association to which they expressed themselves to belong, and which they described as an association of gentlemen, who were desirous of giving the people their liberties and their rights. You will have it in evidence, that this John Francis in particular administered some unlawful oaths and engagements to persons to become members and confederates of this association; you will find him attempting to administer similar oaths to others, without success; you will find him in particular administering that oath to two witnesses whom we shall call to you, two soldiers of the names of Blades and Windsor; and about the time when he administered the oath to Windsor, you will have it in proof that he delivered two or three copies of it to him for the purpose of being employed by him in the same way; it will appear that Windsor, very shortly after he had taken this oath ;—whether dissatisfied with the nature of the engagement in which he had entered, or from what other motive you will best be able to collect from his evidence, and the other evidence that will appear;-thought proper to communicate to a Mr. Bowuas, whem we shall likewise call as a witness, the existence of this conspiracy, and that at the same time, he produced to him one or two copies of this oath, which had been so furnished to him by Francis. Fortunately Mr. Bownas has preserved that paper, which was so delivered to him by Windsor; he will produce it to you in evidence in this cause, and he and Windsor will state, that, in consequence of this communication, Windsor was advised by him to continue meeting this association, for the purpose of discovering whether there were or not any persons of consequence connected in this scheme.

oaths, but that John Wood did the same; you will likewise have in evidence, that the prisoner at the bar tendered an oath of this very description to a witness whom we shall call; you will find likewise, that at the time of the apprehension of these prisoners, upon the 16th of November, three similar papers were found in the possession of a prisoner of the name of Broughton, that one was found in the pocket of a prisoner of the name of Phillips, and that another was found, discarded by some of the parties, upon the floor of the room in which they were assembled. Attaching, as I do, so much consequence and importance to this piece of evidence, I think it will be necessary-at least it will be useful that I should possess you, at this early stage of the cause, with the contents, the substance, and the effect of it: some copies of it are roughly printed upon paper, others are fairly printed upon cards, the cards and papers containing the same words the words are these.

"Constitution-the independence of Great "Britain and Ireland.-An equalization "of civil, political, and religious rights. "An ample provision for the families "of the heroes who shall fall in the con"test.-A liberal reward for distinguish"ed merit.-These are the objects for "which we contend, and to obtain these "objects we swear to be united."_ This is the preface to the oath, then follows the oath.

"In the awful presence of Almighty God, "I, A. B. do voluntarily declare, that I "will endeavour to the utmost of my

power, to obtain the objects of this

union, namely, to recover those rights "which the Supreme Being in his infi"nite bounty has given to all men ; that "neither hopes nor fears, rewards nor "punishments, shall ever induce me to "give any information, directly or indi "rectly, concerning the business, or of any "member of this or any similar Society, so help me God."

"

I

I have myself had the frequent opportunity of observing, when persons have been charg ed either with seditious motives or with treasonable motives connected with their political pursuits, that it has been not unfrequent to endeavour to prevail upon the jury, who You will find the copy of this oath and en- were to try that charge, to believe, that their gagement a most important subject of your objects were merely some alteration, in the attention and examination. You will find it nature of a reform, in the existing frame of to be most important evidence in this cause things, to be obtained by legal, by regular, not only because it is incapable of innocent by peaceable, by constitutional means. interpretation; not only because it will ap- have no gift of prophecy-I know not whepear to be incapable of any other interpreta-ther any such attempt at construction will be tion, than that of endeavouring to procure confederates for this treasonable purpose, but because you will find it furnishing a medium or chain of connexion in the proof, between several of the persons who are charged with this conspiracy; for you will have in evidence, not only that John Francis administered these VOL. XXVIII.

put upon this paper-perhaps, however, it may; and as far as the word constitution describes the objects of these persons,understand ing it, as in candour and fairness we ought to understand it, the constitution of our own country, unquestionably there would be no quarrel with them on that account. With res 2 B

Gentlemen, I was stating to you, that the prisoners Francis and Wood particularly were found to be active members of this conspiracy and that they were administering oaths of this description; you will find by the evidence that about the middle of the summer they thought it inexpedient to meet always at the same place; that for the purpose of avoiding suspicion, they agreed to meet at different places; and in the course of the evidence, I think, I shall have to show to you a great number of different public houses at which they met; the names of some occur to me, the Ham and Windmill, in Windmill-street, near the Haymarket; the Black Horse, Oxford-road; an alehouse of the same name in St. Giles's; the Bleeding Heart, in Charles-street, by Hattongarden; several public houses near the Tower, in the Mint, in the Borough; the Flying Horse, at Newington, in this county, and the Oakley Arms, in St. George's- fields, are some of those which occur to me at the moment.

spect to the independence of Great Britain in its interpretation, then the rest of the eviand Ireland, if by that is meant the independence, and the conduct of the conspirators dence of the united kingdom of Great Britain will, I trust, sufficiently remove that amand Ireland from all foreign authority and biguity. control, undoubtedly there could be no objection to such an object; but if by the independence of Great Britain and Ireland, the disunion and separation of the two was intended, I am sure you will not suspect me of intending to admit, that that would be an innocent object." An equalization of civil, political, and religious rights."—I have heard, indeed, not unfrequently, very strained attempts made, to soften down objects so described. I have heard it argued, that by such terms nothing more was meant, than the equal right to the equal administration of justice under equal laws, and the equal protection, under those laws, to the unequal proportion of property, or of any political right or privilege, which a subject might constitutionally possess. It would I think be difficult to put that construction upon these words; nay, it seems to me to be clear, that an annihilation of all distinctions and inequalities in rank, property, or political right whatever, is the fair, the reasonable, and the necessary interpretation of them; and, indeed, that any other interpretation cannot be the meaning of this paper is obvious to demonstration; for if the equal right to equal justice was the object of these parties, it is that which every Englishman does enjoy, under the British constitution, in an infinitely greater degree than any man in any other age or situation in the world ever did enjoy; it therefore could not be an object for which they would have to contend; it could not be an object to obtain which they would be united; it would not be an object or right, which God of his infinite bounty having given to all men, it was their purpose to recover. These are expressions, that are not applicable to any mere improvement in existing circumstances, but they plainly demonstrate an intention of obtaining something which they had not before. But, gentlemen, if peaceable means, if constitutional means were the means by which Gentlemen, in the course of the summer, they were to procure these constitutional ob- the prisoner John Francis was ordered with jects, surely, surely, there would be no room his detachment of the guards on duty to for heroism in a contest of that description; Windsor. It will be necessary to follow him surely there would be no danger of any of the and Wood there. You will find them purpersons engaged in it falling in the contest; suing the same plan of endeavouring to adthe contest in which a hero is to fall, must minister oaths there to soldiers, and to a perbe necessarily not a contest of mind, of argu- son we shall call who is not a soldier. At the ment, and of reasoning, but of bodily strength, same time the other conspirators were not opposed to existing power if not to existing idle in town; there was a communication kept laws. I think, therefore, that this oath is up between them. We shall show, by the perfectly incapable of innocent interpretation; evidence of a person of the name of Connell, and I trust that what I have already said is that Wratten, one of the conspirators, was sent sufficient to characterize and develope the na- down to Windsor for the purpose of commuture of it, and sufficient likewise to charac-nicating with some soldiers there; that he reterize and develope the nature of that society which was formed upon this oath, as constituting the bond of union among its members. If, however, ingenuity can be so applied to this paper as to make it equivocal

Gentlemen, you will have it in evidence, that at those meetings, some part of the plan was to seduce the soldiers; and in order to prevail upon them to come there, to treat them with refreshment. Several soldiers will be called who were thus invited by the prisoners; they will tell you, that at those meetings it was customary to have toasts given, and sentiments favourable to liberty, and the extension of rights; that it was not unfrequent to have consultations held with respect to the necessity of an extension of the rights of the subject, and intimating that an improvement, according to the model of France, would be a good thing to be adopted. You will find attempts made to procure from soldiers, signatures and engagements to unite with them; and though some of them unfortunately listened too much to the invitation, others you will find from the first revolted at it.

turned back; and that he had the expenses of his journey paid him by the society. Wratten was accompanied by one or two more upon this mission. Similar meetings, of which I shall not trouble you with any particular ac