Monday, March 27, 1820, was the day appointed for opening the Special
Commission for the trial of the Conspirators engaged in the Cato-street
plot, and the officers of the Crown attended accordingly in the court
at HICKS’S-HALL, at nine o’clock in the morning. The gentlemen who were
summoned on the grand inquest were also in attendance.
The witnesses for the Crown, about thirty in number, were placed in
a room by themselves, preparatory to their being taken before the
Grand Jury. Those witnesses who themselves stood charged with being
parties to the conspiracy were in separate rooms, under the charge of
constables. Among them were Monument, who, it will be recollected,
was committed to the Tower; and Adams, who remained for some time a
prisoner in St. Martin’s watch-house, but was afterwards committed
to the House of Correction in Cold-bath-fields. This man had been
labouring under severe indisposition ever since his apprehension.
The pike-handles, guns, pistols, swords, grenades, daggers, ammunition,
and other articles seized on the persons of the prisoners, and in
Cato-street, at Brunt’s lodgings, and elsewhere, were deposited in
the office of the clerk of indictments. When collected together they
presented a formidable appearance.
At ten o’clock the Attorney and Solicitor-Generals entered the Court,
and took their seat at the barristers’ table. In a few minutes
afterwards Chief-Justice Abbott and Chief-Justice Dallas, together with
Mr. Const, and other magistrates, whose names were mentioned in the
Commission, came upon the bench.
Proclamation was then made for silence, and the commission was
immediately read by Mr. Dealtry, one of the clerks of the Crown-office.
The names of the gentlemen summoned on the Grand Jury were then called
over, and the following gentlemen were sworn:
Job Raikes, esq.
John Stock, esq.
Thomas Milroy, esq.
Robert Batson, esq.
William Hills, esq.
Henry Thomson, esq.
Richard Gibbs, esq.
Thomas Lomet, esq.
James Gordon, esq.
William Anderson, esq.
William Parry, esq.
John Booth, esq.
John H. Pakenham, esq.
John Warren, esq.
George Frederick Young, esq.
Robert Meacock, esq.
Richard Jennings, esq.
James Taylor, esq.
John Johnson, esq.
Francis Douse, esq.
John William Horsley, esq.
William Benning, esq.
Stephen Taylor, esq.
These gentlemen having been sworn by Charles Abbott, esq. marshal to
the commission, proclamation was made for silence while the charge was
delivered.
LORD CHIEF-JUSTICE ABBOTT then addressed the Grand Jury in the manner
following:
“Gentlemen of the Grand Inquest--We are assembled in this place, under
the authority of his Majesty’s Special Commission, issued for the
purpose of inquiring into, hearing, and determining, certain offences
therein particularly mentioned. These offences are, first, all high
treasons, except such as relate to the coin of the realm; secondly, all
misprisions of treason; thirdly, the murder of one Richard Smithers,
deceased, and any other crime or offence touching the death of that
person; and, fourthly, any offences committed against the persons of
Frederick Fitzclarence, George Legg, John Surman, William Westcott,
John Muddock, James Basey, and other persons, or any of them, contrary
to the form of an act made and passed in the forty-third year of
the reign of his late Majesty, for, among other things, the further
prevention of the malicious shooting, maiming, stabbing, or wounding,
any person or persons; and, gentlemen, it has become my duty to offer
to your consideration some remarks on each of these subjects, for your
assistance in the discharge of the important duty which will devolve
upon you when the bills are laid before you.
“The particular crime of treason to which it would be proper to call
your attention is to be found, 1st, in the ancient statute 25 Edward
III., and 2dly, in a statute passed for very wise purposes in the 36th
year of the reign of his late Majesty. [His Lordship here recited the
enacting clauses of the statutes to which he referred; the first of
which declares it to be high treason to compass and imagine the death
of the King or the Queen, or to levy war against the King within his
realm; and, the second enacts, that if any person, within or without
the realm, compass or imagine the death of the King, or his deposition,
or to do him any bodily harm, such as maiming, wounding, or imprisoning
him, in order by force to compel him to change his measures or counsels
of government, any persons so offending shall be guilty of high
treason.]
“You will observe, gentlemen, that in each of the description of
offences that I have enumerated, except the levying of war, which
is in the ancient statute that I have alluded to, the words are,
“imagination and intention,” which are words of the same meaning,
and the actual perpetration of the crime is not mentioned. But it is
further required by an ancient statute, that the party accused shall
be provably attainted; and by a latter statute it is mentioned, that
if the party shall express, utter, or declare his intention by any
printing or writing, that is an overt act of such intention. The law
has wisely provided for the public safety, that in cases of this
kind, which involve the most extensive public mischief, the intention
shall be adjudged the crime; but, at the same time, for the safety
of the individual charged, it is required that such intention shall
be manifested by some act tending towards the accomplishment of the
criminal object charged.
“It may be proper to mention, that, before the passing of a late
statute, it was settled by several cases, and the opinions of the first
text writers, that all attempts to depose the king from his royal
state, to restrain his person, or to levy war against him, were high
treason; and all conspiracies, consultations, and agreements for those
purposes, were overt acts of compassing and imagining the death of
the king. By the late statute, all these things are made substantive
treasons, and thereby the law is made more clear to those who are
bound to obey it, and to those who may be engaged in the administration
of it.
“It may be also proper to remark, that all the pomp and circumstances
of military array are not necessary to the first levying of war.
Insurrections for the purpose of accomplishing the designs I have
mentioned to you by force, however ill arranged, if they are to
accomplish an innovation in public affairs, in which the parties
have no special or particular interest, are an actual levying of
war. Rebellion at its first commencement is rarely found in military
discipline or array, although a little success may soon lead it to
assume those appearances. Any act manifesting a criminal intention, and
tending towards the accomplishment of the criminal object, is, in the
language of the law, an overt act. Overt acts may be committed openly
and manifestly; but there are other overt acts, such as meetings and
consultations, and contrivances, agreements and promises of mutual
support and assistance, and incitements to others to engage in the
same scheme, are also overt acts. Assenting to the designed purpose,
assisting in the preparation of weapons, or any other thing necessary
to the general design, are all overt acts of the particular kind of
treason, of the particular compassing and imagination to which they may
happen to apply; and in this crime of high treason the law acknowledges
no accessories,--all are principals. All who participate in the
design and object, whether they enter into them early or late, are
equally guilty; for it will be found in conspiracies of a treasonable
nature, as well as all other conspiracies, that each is engaged in
accomplishing some particular object, which is a part of the general
design. Some are more zealous and ardent, others are more close and
reserved; but, as they are all acting in pursuance of the same view and
object, all are equally guilty. Overt acts are most important matters
for your investigation. It is necessary that the proof be set forth
in the indictment, in order that the accused may be prepared for his
defence; but it is not necessary that all the circumstances of proof
should be detailed. It is also required, in cases of high treason, that
there should be two witnesses to the overt acts. It is not necessary
that there should be two witnesses to every overt act; but if there
be one witness to one overt act, and another to another, that is
sufficient. Some one overt act must be proved to have taken place in
the county in which the trial takes place, as in the present case, in
Middlesex.
“Having said thus much upon the law, as it applies to high treason,
I shall now address myself to the cases likely to be brought before
you, in order that you may apply that law. But in any thing I may say,
with reference to the inquiry in which you are likely to be engaged, I
request you will consider it all as supposition.
“It has been supposed that a conspiracy was formed to assassinate
certain persons engaged in the administration of the government of
the country, when they were assembled at a dinner at the house of
one of them, on February 23d: and it is supposed that a treasonable
hostility to the government dictated that act, for the abolition of
that government would follow this assassination. In furtherance of
this design, seven persons were found almost in the act of immediate
preparation, in a stable, with arms and offensive weapons, suitable
to the accomplishment of such a traitorous purpose. Those persons,
when attempted to be arrested by the peace-officers and the military,
in their endeavours to escape, which many of them effected, killed
one Richard Smithers. Pistols were discharged--weapons of death were
used--and some or all of the persons named were wounded.
“Of these matters all of you have, no doubt, read and heard; therefore
I take the liberty most earnestly to entreat you to confine your
attention to the evidence laid before you, and to banish from your
minds such information as you may have previously received as to the
motive or object of this supposed conspiracy, or as to the conduct of
the particular individuals supposed to be engaged in it.
“I should tell you that a conspiracy to murder public persons, however
important their situations may be, if arising from private malice,
and not intended to bring about any other object, does not constitute
the crime of high treason. But if the assassination of such persons
is meant as the first step of a general design to attack and destroy
by force the government of the country, or to compel the sovereign to
adopt such measures as they may think fit, then that assassination
assumes a different complexion, and may be considered an overt act
of one or both of those species of treason which I have mentioned.
If, therefore, a conspiracy to take away the lives of his Majesty’s
ministers should be proved, you will look to the object about to be
obtained by that assassination, and also to the number and rank of the
persons intended to be assassinated; for the crime increases not only
with the number of the conspirators, but with the number of the persons
intended to be assassinated.
“It is, indeed, difficult to conceive that persons could from private
malice alone, and without having a public object in view, conspire
together to assassinate a number of individuals of whom they could have
no knowledge but from the public situations which they filled. But the
difficulty of the supposition must not supply the place of evidence. We
well know that all attempts to subvert the government of this country
must, in the calm and sober eye of reason, appear wild and hopeless;
but you will consider that the mad persons who indulge such views are
led to diminish the difficulties and to magnify the success and the
benefit attending their schemes. It is natural for the vicious to think
that there are others as wicked as themselves, and that they shall
gain numerous adherents if they succeed in their first attempt. It is
this belief that often leads them to a premature disclosure of their
purposes to those whom they think likely to participate in their guilt,
and that thus furnishes evidence of their dangerous designs; but dark
and deep designs are seldom developed but through those who have joined
in them. The evidence of accomplices, however, is always to be received
with caution, and the conviction arising from such evidence should rest
on circumstances of credibility rather than on the personal characters
of the witnesses themselves. If such testimony were on all occasions
to be rejected, one of the greatest securities to the honest part of
society would be annihilated--namely, the want of mutual confidence in
those engaged in wicked schemes.
“The next subject which is likely to come under your observation is
misprision of treason, which consists in the concealment of treason,
when it is within the knowledge of the parties by whom it might be
divulged, and whose duty it would be to go before the first magistrate,
and make known the evil purposes which they know to be contemplated.
“The third subject to which your attention may be directed is the
murder of Richard Smithers, and any other offence touching the death of
that person, who lost his life on the occasion of the attempt made to
arrest those persons now in custody. It will be material to take into
your consideration the place, the time, and the circumstances, where,
when, and under which, that attempt to arrest them was made.
“The caution required by law as to the conduct of officers of
justice in apprehending persons charged with crimes applies only to
a dwelling-house whereof the doors are not open, and that caution
is confined to a dwelling-house alone. All other buildings or places
of meeting may be lawfully opened and entered for the apprehension
of persons charged with crimes against the law, without any previous
notification made. And when those officers have declared the character
in which they appear, the persons within are bound to yield themselves
in the same manner as if they had been met in the fields, or in the
open street; and if any of these officers be killed when the arrest
would have been lawful, then the party by whom the death-wound is
inflicted becomes guilty of the crime of murder. The arrest of persons
under the authority of a warrant from the magistrates is a lawful
arrest. So also is the arrest by peace-officers, without a warrant,
of persons supposed or reasonably alleged to have committed felony.
So also is an arrest by peace-officers, without a warrant, of persons
actually engaged in any breach of the peace, or of persons assembled
and arming, or otherwise preparing for the immediate perpetration
of murder; because such an assembly and such a perpetration are in
themselves criminal, and the arrest is actually necessary for the
prevention of the accomplishment of a still more heinous design. I
mention this, because the case likely to be submitted to you may fall
within these observations. The persons required to surrender to the
officers of the peace, though they may not be authorized to arrest
them, are not warranted in assaulting those officers with deadly
weapons, without warning them to stand off; and if they do, and death
ensue, they all subject themselves to punishment for the crime of
murder--at all events, they would be guilty of man-slaughter.
“In speaking of those guilty of murder, you will bear in mind that all
who unite in resistance, and use words manifesting that determination,
are equally guilty with him who inflicts the death-wound.
“Gentlemen, having said so much upon the third head of your inquiry,
very little remains to be said of the fourth. This comprises all
offences committed on the person of F. Fitzclarence, and the others
maimed, contrary to the 43d of the late king, the title of which is set
forth. You will therefore see that the jurisdiction does not extend
to all offences committed against these persons, but only such as are
contrary to the statute I have just mentioned to you. That statute is
the fifty-eighth chapter of the 43d of his late majesty; and as no
doubt it has been brought under the view of many of you, I need not
enter fully into it. The provisions of this act are--‘That it is a
capital felony for any person to shoot at, or wilfully to present and
point loaded fire-arms at, and attempt, by drawing the trigger, to
discharge the same at any of his majesty’s subjects, and also wilfully
and maliciously to stab or cut, with intent to murder, rob, maim,
or disfigure any of his subjects, or to do them any grievous bodily
harm.’ There is an express provision in this statute which enacts, that
these offences must be committed under such circumstances as that,
if the attempt succeeded in depriving a fellow-creature of life, it
would be murder. Now, if such an attempt be made in the open street,
which probably is a case that may be brought before you, there can be
no question of a malicious design to murder, or to do some grievous
bodily harm. As, however, no case is likely to come before you falling
within the excepting provision of the statute, I forbear to trouble you
with any further observations, being well aware, that in this case,
as well as in every other, the best security for the due discharge
of the important trust reposed in you will be found in your own good
sense, your own sound discretion, and your own general knowledge.
If, however, in the progress of your investigation any unexpected
difficulty shall arise, the Court will be found ready to give you such
further advice as you may require.
“Having detained you thus long, with such observations as I have
thought necessary, I now dismiss you to the discharge of that important
duty for the execution of which you are assembled.”
At the conclusion of his Lordship’s address, the Jury retired to their
room, and proceeded to examine witnesses upon the indictments which
were preferred before them. The Judges continued sitting in Court for
upwards of an hour, when the foreman and a few other members of the
Grand Jury returned, and an arrangement was made that their Lordships
should resume their seats at twelve o’clock, and that the Grand Jury
were to assemble at ten o’clock.
On this occasion, the following witnesses were in attendance:--The
Right Hon. Nicholas Vansittart, R. Baker, Esq., R. Birnie, Esq.,
Captain Fitzclarence; Monument and Adams (in custody); Ruthven, Ellis,
Westcott, Lee, Brooks, Surman, Wright, Taunton, Bishop, and Gill
(officers); Serjeant Legge, John Muddock, Jonathan Curtis, Joseph
Basey, Joseph Rivell, and Joseph Edgar (soldiers); Joseph Hall, Thomas
Droyer, Thomas Hiden, Joseph Harry Price, Emanuel Francis, James
Pocock, James Munday, Richard Munday, George Paylock, Mary Rogers,
Eleanor Walker, _&c._
Soon after twelve o’clock the Judges left the Court; and at half
past twelve the Grand Jury, having then been a considerable time in
deliberation, proceeded with the examination of witnesses.
Mr. BOUCHIER, one of the solicitors to the Treasury, was the first
witness examined: he was only a few minutes before the Jury.
ROBERT ADAMS, the ex-Oxford Blue, and an accomplice of the
conspirators, was next called. He was brought from the House of
Correction, where he had been in confinement since the final
examination of the conspirators before the Privy-Council, in the
custody of Mr. Adkins, the Governor, and the principal turnkey. He was
three hours under examination. He appeared perfectly cool and collected
when he came from the Grand Jury Room. After his examination he was
taken back in custody to the Cold-Bath-fields Prison.
The Right Hon. NICHOLAS VANSITTART, Chancellor of the Exchequer,
was the third witness. The Right Hon. gentleman, together with
CAPTAIN FITZCLARENCE, and other witnesses of the superior order, was
accommodated with a private room, while waiting the summons of the
Grand Jury. He was not more than ten minutes under examination.
JOSEPH BAKER, servant to the Earl of Harrowby, and fourteen other
witnesses, were then examined in succession. Amongst them was
JOHN MONUMENT, one of the eight committed to the Tower on the charge
of high treason. He was brought from the Tower in the custody of two
Yeomen of the Guard, and several officers, and was kept in a private
room, attended only by the Yeomen, with their swords drawn, during the
day. He seemed very uneasy, and continued pacing the room about the
whole time that he remained there. He appeared pale and dejected, and
by no means a willing witness. After his examination, which lasted
nearly an hour, he was conducted back to the Tower in the same custody.
There were several women among the persons examined. They were of
respectable appearance. Two boys were also called.
Captain Fitzclarence was the last witness called, and at six o’clock
the Grand Jury adjourned until nine o’clock on the following morning.
Tuesday the 28th of March, the court again met, pursuant to
adjournment, and soon after twelve o’clock, the Chief-Justices of the
King’s Bench and the Common Pleas, and the Attorney and Solicitor
Generals, took their respective seats.
At half-past two o’clock, the Grand Jury, having gone through the
examination of the whole of the witnesses, entered with true bills
for high treason against Arthur Thistlewood, William Davidson, James
Ings, J. T. Brunt, Richard Tidd, J. W. Wilson, John Harrison, Richard
Bradburn, James Shaw Strange, James Gilchrist, and Richard Charles
Cooper.
The bills for high treason against Abel Hall and Robert George, were
ignored.
The Lord Chief Justice then expressed to the Attorney-General his
wish that the persons against whom true bills had been found might
have intimation, without the trouble of coming into court, that
their attorneys and counsel would have ready access to them. The
Attorney-General promised that every facility should be given to the
communication with their legal advisers.
On the following day the court assembled a third time to inquire into
the murder of Smithers, and divers acts of felony alleged to have
been committed by the prisoners; accordingly at twelve o’clock the
Lord Chief Justice of the King’s Bench took his seat in Court. The
Solicitor-General attended for the Crown.
The Grand Jury immediately entered, and delivered several bills to the
clerk, who read as follows:--
True bills for murder against Arthur Thistlewood, John Thomas Brunt,
Richard Tidd, James William Wilson, John Harrison and James Shaw
Strange.
No bills for murder against William Davidson, James Ings, Richard
Bradburn, James Gilchrist, Abel Hall, and Richard Charles Cooper.
True bills for felony against James Ings, Richard Tidd, James William
Wilson, and Arthur Thistlewood.
The Foreman stated, that there was no other bill before them.
The Solicitor-General said, that it was not intended to prefer any more
bills at present.
The Court was then adjourned by direction of the Lord-Chief Justice
till the 13th day of April then next ensuing, at half-past 9 in the
morning.
A material omission occurred in the bills of indictment preferred
before this Grand Jury, assembled under the Special Commissions, with
regard to _Davidson_, the man of colour, who, on the night of the
capture of the conspirators, was standing sentry at the entrance to the
place of meeting, armed with a carbine, and sword of immense length,
and in resisting the attempt of the officers to take him into custody,
discharged his carbine at one of them. In preferring the bills against
the prisoners for the several offences with which they were charged,
this circumstance was overlooked, and it was not recollected, till
Wednesday the 19th of April. An order was consequently given on that
evening by Mr. Maule, the solicitor to the Treasury, to Ruthven, Ellis,
Gill (the man shot at), and other witnesses, to attend before the
Middlesex Grand Jury, at Clerkenwell, on the following day, and to take
with them the arms taken from Davidson. They attended accordingly, the
bill of indictment was preferred, and a true bill found against William
Davidson, for feloniously shooting at Gill, with intent to kill, &c.
Only three witnesses were called. The bill was preferred before the
Grand Jury summoned to dispose of the ordinary Sessions business, and
not that which had assembled under the Special Commission.
On Monday the 3d of April, copies of the indictments, with lists of the
jurors and of the witnesses to be produced on the trial, were delivered
to each of the prisoners in their respective places of confinement.
The LIST of the JURORS contained the names of 227 freeholders of the
county of Middlesex, resident in the different parishes, many of them
at a considerable distance from the metropolis.
The INDICTMENT contained four counts, on each of which certain overt
acts were charged, manifesting and proving the acts of treason set
forth. The following is an abstract of the Indictment.
_The King against Arthur Thistlewood, William Davidson, James
Ings, John Thomas Brunt, Richard Tidd, James William Wilson, John
Harrison, Richard Bradburn, John Shaw Strange, James Gilchrist,
and Charles Cooper._