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if it had omitted to charge, we should not have troubled you with any defense at all, because no judgment could have been given on so defective an indictment. For the statute never meant to put an unarmed assembly of citizens on a footing with armed rebellion; and the crime, whatever it is, must always appear on the record to warrant the judgment of the court.

and levying

war.

It is certainly true that it has been held to be What consti matter of evidence, and dependent on circumstances, what numbers, or species of equipment and order, though not the regular equipment and order of soldiers, shall constitute an army, so as to maintain the averment in the indictment of a warlike array; and, likewise, what kind of violence, though not pointed at the King's person, or the existence of the government, shall be construed to be war against the King. But as it has never yet been maintained in argument, in any court of the kingdom, or even speculated upon in theory, that a multitude, without either weapons offensive or defensive of any sort or kind, and yet not supplying the want of them by such acts of violence as multitudes sufficiently great can achieve without them, was a hostile army within the statute; as it has never been asserted by the wildest adventurer in constructive treason, that a multitude, armed with nothing, threatening nothing, and doing nothing, was an army levying war; I am entitled to say that the evidence does not support the first charge in the indictment; but that, on the contrary, it is manifestly false - false in the knowledge of the Crown, which prosecutes it—false in the knowledge of every man in London, who was not bed-ridden on Friday the 2d of June, and who saw the peaceable demeanor of the Associated Protest

ants.

Case of Damaree inapplica ble.

But you will hear, no doubt, from the Solicitor General (for they have saved all their intelligence for the reply) that fury supplies arms; furor arma ministrat; and the case of Damaree will, I sup- | pose, be referred to; where the people assembled had no banners or arms, but only clubs and bludgeons: yet the ringleader, who led them on to mischief, was adjudged to be guilty of high treason for levying war. This judgment it is not my purpose to impeach, for I have no time for digression to points that do not press upon me. In the case of Damaree, the mob, though not regularly armed, were provided with such weapons as best suited their mischievous designs. Their designs were, besides, open and avowed, and all the mischief was done that could have been accomplished, if they had been in the completest armor. They burned Dissenting meetinghouses protected by law, and Damaree was taken at their head, in flagrante delicto [in the crime itself], with a torch in his hand, not only in the very act of destroying one of them, but leading

4 In this case, a mob assembled for the purpose of destroying all the Protestant Dissenting meeting houses, and actually pulled down two.-8 State Trials, 218. Foster, 208. S s

The intention

constitutes the essence of the crime.

6

on his followers, in person, to the avowed destruction of all the rest. There could, therefore, be no doubt of his purpose and intention, nor any great doubt that the perpetration of such purpose was, from its generality, high treason, perpetrated by such a force as distinguishes a felonious riot from a treasonable levying of war. The principal doubt, therefore, in that case was, whether such an unarmed, riotous force was war, within the meaning of the statute; and on that point very learned men have differed; nor shall I attempt to decide between them, because in this one point they all agree. Gentlemen, I beseech you to attend to me here.. I say on this point they all agree, that it is the intention of assembling them which forms the guilt of treason. I will give you the words of high authority, the learned Foster, whose private opinions will, no doubt, be pressed upon you as a doctrine and law, and which, if taken together, as all opinions ought to be, and not extracted in smuggled sentences to serve a shallow trick, I am contented to consider as authority. That great judge, immediately after supporting the case of Damaree, as a levying war within the statute, against the opinion of Hale in a similar case, namely, the destruction of bawdy-houses, which happened in his time, says, "The true criterion, therefore, seems to be-Quo animo did the parties assemble?—with what intention did they meet ?" On that issue, then, in which I am supported by the whole body of the criminal law of England, concerning which there are no practical precedents of the courts that clash, nor even abstract opinions of the closet that differ, I come forth with boldness to meet the Crown. For, even supposing that peaceable multitude-though not hostilely arrayed-though without one species of weapon among them-though assembled without plot or disguise by a public advertisement, exhorting, nay, commanding peace, and inviting the magistrates to be present to restore it, if broken-though composed of thousands who are now standing around you, unimpeached and unreproved, yet who are all principals in treason, if such assembly was treason; supposing, I say, this multitude to be, nevertheless, an army within the statute, still the great question would remain behind, on which the guilt or innocence of the accused must singly depend, and which it is your exclusive province to determine, namely, whether they were assembled by my noble client for the traitorous purpose charged in the indictment? For war must not only be levied, but it must be levied against the King in his realm; i. e., either directly against his person to alter the Constitution of the government, of which he is the head, or to suppress the laws committed to his execution by rebellious force. You must find that Lord George Gordon assembled these men

5 To constitute a treasonable levying of war there must be an insurrection; there must be force accompanying that insurrection; and it must be for an object of a general nature. Regina v. Frost, 9 Car rington and Payne, 129. 61 Hale, 132.

with that traitoroas intention. You must find not merely a riotous, illegal petitioning-not a tumultuous, indecent importunity to influence Parliament, not the compulsion of motive, from seeing so great a body of people united in sentiment and clamorous supplication-but the absolute, unequivocal compulsion of force, from the hostile acts of numbers united in rebellious conspiracy and arms.

This is the issue you are to try, for crimes of all denominations consist wholly in the purpose of the human will producing the act. "Actus non facit reum nisi mens sit rea." The act does not constitute guilt, unless the mind be guilty. This is the great text from which the whole moral of penal justice is deduced. It stands at the top of the criminal page, throughout all the volumes of our humane and sensible laws, and Lord Chief Justice Coke, whose chapter on this crime is the most authoritative and masterly of all his valuable works, ends almost every sentence with an emphatical repetition of it.

The intention

traitorous

The indictment must charge an open act, because the purpose of the mind, which must be proved is the object of trial, can only be some open act. known by actions. Or, again to use the words of Foster, who has ably and accurately expressed it, "the traitorous purpose is the treason; the overt act, the means made use of to effectuate the intentions of the heart." But why should I borrow the language of Foster, or of any other man, when the language of the indictment itself is lying before our eyes? What does it say? Does it directly charge the overt act as in itself constituting the crime? No; it charges that the prisoner "maliciously and traitorously did compass, imagine, and intend to raise and levy war and rebellion against the King;" this is the malice prepense of treason; and that to fulfill and bring to effect such traitorous compassings and intentions, he did, on the day mentioned in the indictment, actually assemble them, and levy war and rebellion against the King. Thus the law, which is made to correct and punish the wickedness of the heart, and not the unconscious deeds of the body, goes up to the fountain of human agency, and arraigns the lurking mischief of the soul, dragging it to light by the evidence of open acts. The hostile mind is the crime; and, therefore, unless the matters that are in evidence before you do, beyond all doubt or possibility of error, convince you that the prisoner is a determined traitor in his heart, he is not guilty.

icide and oth er crinies.

It is the same principle which creates all the The same is various degrees of homicide, from that which is excusable to the malignant guilt of murder. The fact is the same in all. The death of the man is the imputed crime; but the intention makes all the difference; and he who killed him is pronounced a murderer-a simple felon or only an unfortunate man, as the circumstances, by which his mind has been deciphered to the jury, show it to have been cankered by deliberate wickedness, or stirred up by sudden passions.

appled to the

oner.

Here an immense multitude was, beyond all doubt, assembled on the second of These praciples June. But whether HE that assem-se of the pris bled them be guilty of high treason, of a high misdemeanor, or only of a breach of the act of King Charles the Second' against tumultuous petitioning (if such an act still exists), depends wholly upon the evidence of his purpose in assembling them, to be gathered by you, and by you alone, from the whole tenor of his conduct; and to be gathered, not by inference, or probability, or reasonable presumption, but, in the words of the act, provably; that is, in the full, unerring force of demonstration. You are called, upon your oaths, to say, not whether Lord George Gordon assembled the multitudes in the place charged in the indictment, for that is not denied; but whether it appears, by the facts produced in evidence for the Crown when confronted with the proofs which we have laid before you, that he assembled them in hostile array and with a hostile mind, to take the laws into his own hands by main force, and to dissolve the Constitution of the government, unless his petition should be listened to by Parliament.

That is your exclusive province to determine. The court can only tell you what acts the law, in its general theory, holds to be high treason, on the general assumption that such acts proceed from traitorous purposes. But they must leave it to your decision, and to yours alone, whether the acts proved appear, in the present instance, under all the circumstances, to have arisen from the causes which form the essence of this high crime.

Summation.

Gentlemen, you have now heard the law of treason; first, in the abstract, and secondly, as it applies to the general features of the case; and you have heard it with as much sincerity as if I had addressed you upon my oath from the bench where the judges sit. I declare to you solemnly, in the presence of that great Being at whose bar we must all hereafter appear, that I have used no one art of an advocate, but have acted the plain unaffected part of a Christian man, instructing the consciences of his fellow-citizens to do justice. If I have deceived you on this subject, I am myself deceived; and if I am misled through ignorance, my ignorance is incurable, for I have spared no

7 By 13 Car. II., st. 1, c. 5, passed in consequence liament of 1640, it is provided that no petition to the of the tumults on the opening of the memorable ParKing or either House of Parliament, for any alteration in Church or State, shall be signed by above twenty persons, unless the matter thereof be ap proved by three justices of the peace, or the major part of the grand jury in the county; and in London by the Lord Mayor, Aldermen, and Common Council: nor shall any petition be presented by more than ten persons at a time. But under these

regulations, it is declared by the Bill of Rights, 1 W. and M., st. 2, c. 2, that the subject hath a right to petition. Lord Mansfield told the jury that the court were clearly of opinion that this statute, 13 Car. II., was not in any degree affected by the Bill of Rights, but was still in force. Dougl., 571.

It is not my purpose to recall to your minds the fatal effects which bigotry has, in former days, produced in this island. I will not follow the example the Crown has set me, by making an attack upon your passions, on subjects foreign to the object before you. I will not call your attention from those flames, kindled by a villainous banditti (which they have thought fit, in defiance of evidence, to introduce), by bringing before your eyes the more cruel flames, in which the bodies of our expiring, meek, patient, Christian fathers were, little more than a century ago, consuming in Smithfield. I will not call up from the graves of martyrs all the precious holy blood that has been spilled in this land, to save its estab

pains to understand it. I am not stiff in opinions; but before I change any of those that I have given you to-day, I must see some direct monument of justice that contradicts them. For the law of England pays no respect to theories, however ingenious, or to authors, however wise; and therefore, unless you hear me refuted by a series of direct precedents, and not by vague doctrine, if you wish to sleep in peace, follow me. II. And now the most important part of our The evidence task begins, namely, the application brought to the of the evidence to the doctrines I have principles. laid down. For trial is nothing more than the reference of facts to a certain rule of action, and a long recapitulation of them only serves to distract and perplex the memory, with-lished government and its reformed religion from out enlightening the judgment, unless the great standard principle by which they are to be measured is fixed, and rooted in the mind. When that is done (which I am confident has been done by you), every thing worthy of observation falls naturally into its place, and the result is safe and certain.

test of these

tions on the

Gentlemen, it is already in proof before you Reasons of (indeed it is now a matter of history), the restric that an act of Parliament passed in the Catholics. session of 1778, for the repeal of certain restrictions, which the policy of our ancestors had imposed upon the Roman Catholic religion, to prevent its extension, and to render its limited toleration harmless; restrictions, imposed not because our ancestors took upon them to pronounce that faith to be offensive to God, but because it was incompatible with good faith to man-being utterly inconsistent with allegiance to a Protestant government, from their oaths and obligations, to which it gave them not only a release, but a crown of glory, as the reward of treachery and treason.

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the secret villainy and the open force of Papists. The cause does not stand in need even of such honest arts; and I feel my heart too big voluntarily to recite such scenes, when I reflect that some of my own, and my best and dearest progenitors, from whom I glory to be descended, ended their innocent lives in prisons and in exile, only because they were Protestants.

ed by Sir George

Gentlemen, whether the great lights of science and of commerce, which, since These laws very those disgraceful times, have illu- suddenly repealminated Europe, may, by dispelling Saville's bill. these shocking prejudices, have rendered the Papists of this day as safe and trusty subjects as those who conform to the national religion established by law, I shall not take upon me to determine. It is wholly unconnected with the present inquiry. We are not trying a question either of divinity or civil policy; and I shall, therefore, not enter at all into the motives or merits of the act that produced the Protestant petition to Parliament. It was certainly introduced by persons who can not be named by any good citizen without affection and respect. But this I will

It was, indeed, with astonishment that I heard the Attorney General stigmatize those wise reg-say, without fear of contradiction, that it was ulations of our patriot ancestors with the title of factious and cruel impositions on the consciences and liberties of their fellow-citizens. Gentlemen, they were, at the time, wise and salutary regulations; regulations to which this country owes its freedom, and his Majesty his crown-a crown which he wears under the strict entail of professing and protecting that religion which they were made to repress; and which I know my noble friend at the bar joins with me, and with all good men, in wishing that he and his posterity may wear forever.8

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sudden and unexpected; that it passed with uncommon precipitation, considering the magnitude of the object; that it underwent no discussion; and that the heads of the Church, the constitutional guardians of the national religion, were never consulted upon it. Under such circumstances, it is no wonder that many sincere Protestants were alarmed; and they had a right to spread their apprehensions. It is the privilege and the duty of all the subjects of England to watch over their religious and civil liberties, in order to enforce his next leading thought; name

ifiable feelings, a point which was important to the defense of his client. This mode of shaping one part of his speech to prepare the way for and support of another, is one of the most admirable qualities of Mr. Erskine, and is worthy of being studied with great attention by the young orator.

8 After the strong statements of Burke respectingly, that the Protestant Association originated in justthis law (see p. 299), the reader will be surprised at these assertions of Mr. Erskine. He was probably influenced by his feelings as a Scotchman whose ancestors had been cruelly persecuted by the Catholics. Twenty-six years after, when Lord Chancellor, he was opposed to allowing Catholic officers in England to hold commissions in the army, as they had been permitted to do in Ireland since 1793; declaring that on this subject he thought "religiously and morally exactly as the King did." He here gives great prominence to his views of the original necessity of the law, confirming them by pointed references in the next paragraph to the persecuting spirit of Popery,

The bill was brought in by Sir George Saville, and supported, among others, by Mr. Dunning, Mr. Thurlow, and Lord Beauchamp, and passed into an act without any opposition in the House of Commons, and with very slight opposition in the Lords, and the King was known to have been favorable to it.

and to approach either their representatives or the Throne with their fears and their complaints -a privilege which has been bought with the dearest blood of our ancestors, and which is confirmed to us by law, as our ancient birth-right and inheritance.

design of the

Soon after the repeal of the act, the ProtestOrigin and ant Association began, and, from small Protestant beginnings, extended over England and Association. Scotland. A deed of association was signed, by all legal means to oppose the growth of Popery; and which of the advocates for the Crown will stand up and say that such an union was illegal? Their union was perfectly constitutional; there was no obligation of secrecy; their transactions were all public; a committee was appointed for regularity and correspondence; and circular letters were sent to all the dignitaries of the Church, inviting them to join with them in the protection of the national religion.

Lord George

All this happened before Lord George Gordon was a member of, or the most distantly connected with it; for it was not till November, 1779, that the London Association made him an offer of their chair, by a unanimous resolution, communicated to him, unsought and unexpected, in a public letter, signed by the secretary in the name of the whole body; and from that day, to the day he was committed to the TowGordon as its er, I will lead him by the hand in your president perfectly view, that you may see there is no blameless. blame in him. Though all his behavior was unreserved and public, and though watched by wicked men for purposes of vengeance, the Crown has totally failed in giving it such a context as can justify, in the mind of any reasonable man, the conclusion it seeks to establish.

This will fully appear hereafter; but let us first attend to the evidence on the part of evidence for of the Crown.

Examination

the Crown.

prosecution is,

The first witness to support this

William Hay-a bankrupt in fortune he acknowledges himself to be, and I am afraid he is a bankrupt in conscience. Such a scene of impudent, ridiculous inconsistency would have utterly destroyed his credibility in the most trifling civil suit; and I am, therefore, almost ashamed to remind you of his evidence, when I reflect that you will never suffer it to glance across your minds on this solemn occasion.

This man, whom I may now, without offense or slander, point out to you as a dark Popish spy, who attended the meetings of the London Association to pervert their harmless purposes, conscious that the discovery of his character would invalidate all his testimony, endeavored at first to conceal the activity of his zeal, by denying that he had seen any of the destructive scenes imputed to the Protestants. Yet, almost in the same breath, it came out, by his own confession, that there was hardly a place, public or private, where riot had erected her standard, in which he had not been; nor a house, prison, or chapel, that was destroyed, to the demolition of

which he had not been a witness. He was at Newgate, the Fleet, at Langdale's, and at Coleman Street; at the Sardinian Embassador's, and in Great Queen Street, Lincoln's Inn Fields. What took him to Coachmakers' Hall? He went there, as he told us, to watch their proceedings, because he expected no good from them; and to justify his prophecy of evil, he said, on his examination by the Crown, that, as early as December, he had heard some alarming republican language. What language did he remember? "Why, that the Lord Advocate of Scotland was called only Harry Dundas!" Finding this too ridiculous for so grave an occasion, he endeavored to put some words about the breach of the King's coronation oath10 into the prisoner's mouth, as proceeding from himself; which it is notorious he read out of an old Scotch book, published near a century ago, on the abdication of King James the Second.

Attend to his cross-examination. He was sure he had seen Lord George Gordon at Greenwood's room in January; but when Mr. Kenyon, who knew Lord George had never been there, advised him to recollect himself, he desired to consult his notes. First, he is positively sure, from his memory, that he had seen him there: then he says, he can not trust his memory without referring to his papers. On looking at them, they contradict him; and he then confesses that he never saw Lord George Gordon at Greenwood's room in January, when his note was taken, nor at any other time. But why did he take notes? He said it was because he foresaw what would happen. How fortunate the Crown is, gentlemen, to have such friends to collect evidence by anticipation! When did he begin to take notes? He said, on the 21st of February, which was the first time he had been alarmed at what he had seen and heard, although, not a minute before, he had been reading a note taken at Greenwood's room in January, and had sworn that he had attended their meetings, from apprehensions of consequences, as early as December.

Mr. Kenyon, who now saw him bewildered in a maze of falsehood, and suspecting his notes to have been a villainous fabrication to give the show of correctness to his evidence, attacked him with a shrewdness for which he was wholly unpre pared. You remember the witness had said that he always took notes when he attended any meetings where he expected their deliberations might be attended with dangerous consequences. "Give me one instance," says Mr. Kenyon, in the whole course of your life, where you ever took notes before." Poor Mr. Hay was thunderstruck; the sweat ran down his face, and his countenance bespoke despair-not recollection: 'Sir, I must have an instance; tell me when and where ?" Gentlemen, it was now too late; some instance he was obliged to give, and, as it was evident to every body that he had one still to choose, I think he might have chosen a better. "He had taken notes at the General Assembly of

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10 Hay swore that Lord Gordon had declared that the King had broken his coronation oath.

the Church of Scotland, six-and-twenty years be- | House of Commons. What took him 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 to be in the lobby, and whom he apprehendtelligence he had collected, the spy stood con-ed to be in danger. "Sir, who was that particfessed indeed. At first he refused 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 spy, because he is a man every way respectable, but who certainly is not only a Papist, but the person who was employed in all their proceedings, to obtain the late indulgences from Parliament." He said Mr. Butler was his particular friend, yet professed himself ignorant of his religion. I am sure he could not be desired to conceal it. Mr. Butler makes no secret of his religion. It is no reproach to any man who lives the life he does. But Mr. Hay thought it of moment to his own credit in the cause, that he himself might be thought a Protestant, uncon-upon the issue you are trying; but the Crown nected with Papists, and not a Popish spy.

So ambitious, indeed, was the miscreant of being useful in this odious character, through every stage of the cause, that, after staying a little in St. George's Fields, he ran home to his own house in St. Dunstan's church-yard, and got upon the leads, where he swore he saw the very same man carrying the very same flag he had seen in the fields. Gentlemen, whether the petitioners employed the same standard-man through the whole course of their peaceable procession is certainly totally immaterial to the cause, but the circumstance is material to show the wickedness of the man. "How," says Mr. Kenyon, "do you know that it was the same person you saw in the fields? Were you acquainted with him?" "No." 66 'How then ?" Why, he looked like a brewer's servant." Like a brewer's servant! "What, were they not all in their Sunday's clothes ?" "Oh! yes, they were all in their Sunday's clothes.” "Was the man with the flag then alone in the dress of his trade?" "No." "Then how do you know he was a brewer's servant ?" Poor Mr. Hay!-nothing but sweat and confusion again! At last, after a hesitation, which every body thought would have ended in his running out of court, he said, "he knew him to be a brewer's servant, because there was something particular in the cut of his coat, the cut of his breeches, and the cut of his stockings !"

You see, gentlemen, by what strange means villainy is detected. Perhaps he might have escaped from me, but he sunk under that shrewdness and sagacity, which ability, without long habits, does not provide. Gentlemen, you will not, I am sure, forget, whenever you see a man about whose apparel there is any thing particular, to set him down for a brewer's servant.

Mr. Hay afterward went to the lobby of the

11 Mr. Charles Butler, author of the Reminiscences.

It may be asked, are these circumstances material? and the answer is obvious: they are material; because, when you see a witness running into every hole and corner of falsehood, and, as fast as he is made to bolt out of one, taking cover in another, you will never give credit to what that man relates, as to any possible matter which is to affect the life or reputation of a fellow-citizen accused before you. God forbid that you should. I might, therefore, get rid of this wretch altogether without making a single remark on that part of his testimony which bears

to.

shall have the full benefit of it all. I will defraud it of nothing he has said. Notwithstanding all his folly and wickedness, let us for the present take it to be true, and see what it amounts What is it he states to have passed at Coachmakers' Hall? That Lord George Gordon desired the multitude to behave with unanimity and firmness, as the Scotch had done. Gentlemen, there is no manner of doubt that the Scotch behaved with unanimity and firmness in resisting the relaxation of the penal laws against Papists, and that by that unanimity and firmness they succeeded;13 but it was by the constitutional unanimity and firmness of the great body of the people of Scotland whose example Lord George Gordon recommended, and not by the riots and burning which they attempted to prove had been committed in Edinburgh in 1778.

I will tell you myself, gentlemen, as one of the people of Scotland, that there then existed, and still exist, eighty-five societies of Protestants, who have been, and still are, uniformly firm in opposing every change in that system of laws established to secure the Revolution; and Parliament gave way in Scotland to their united voice, and not to the fire-brands of the rabble. It is the duty of Parliament to listen to the voice of the people, for they are the servants of the people. And when the Constitution of church or state is believed, whether truly or falsely, to be in danger, I hope there never will be wanting men (notwithstanding the proceedings of to-day) to desire the people to persevere and be firm. Gentlemen, has the Crown proved that the Protestant brethren of the London Association fired the mass

12 Nothing could be finer than the way in which Mr. Erskine sifts this evidence and detects its false

hood.

13 The violent popular opposition manifested to ward the proposed act extending the Roman Catholic Relief Bill to Scotland, caused it to be abandoned.

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