Mr. CURWOOD then rose to address the Jury on behalf of the prisoner,
and commenced by lamenting the effect which the conviction of the last
prisoner must have upon their minds, however good their intentions,
and however anxious they might be to decide this case free from all
preconceived impressions. This circumstance, undoubtedly weighed
heavily upon his (Mr. C.’s) feelings, knowing that the construction of
the human mind was such, as rendered it almost impossible to get rid of
opinions once entertained. The disadvantage under which he laboured, in
this respect, was the more distressing, because although the general
features of this case bore a strong resemblance to the last, yet it
wanted a most material circumstance of confirmation, which was produced
on a former occasion.
Sir ROBERT DALLAS interposed, and objected to any allusion to what had
passed on the former trial. The Solicitor-General, in opening the case,
had most humanely abstained from any reference to the former case,
and had entreated the jury to dismiss from their minds the fact that
another prisoner had been convicted. The Court was bound to treat this
as a case depending upon its own merits, and his Lordship was persuaded
that the Jury would forget that such a person as Thistlewood existed,
and dismiss from their minds all knowledge of the former case, if they
happened to have heard any part of it.
Mr. CURWOOD resumed, and said “he should bow with respectful
deference to the correction of his Lordship. His learned friend the
Solicitor-General had told the Jury that, in stating the case for
the prosecution, he was only anxious to acquit himself as a faithful
servant of the public, by fully and fairly laying before the Jury
the whole of its circumstances; and that as far as his own personal
feelings were concerned, he was regardless of the result. No man would
withhold from his learned friend the fullest credit for the sincerity
of that statement. Though his (Mr. Curwood’s) task was much more
irksome than that of his learned friend, yet he hoped he should have
credit for the same feelings; that he was most anxious, not only to
do his duty towards the unfortunate man at the bar, but towards his
country and his own character. He was sure that the Jury were also
animated by the same feelings, and that whatever might be their private
sentiments, they would form their judgment upon the evidence alone,
and, if upon an impartial consideration of that evidence, they found
it did not bear out the facts charged in the indictment, would gladly
deliver him, by their verdict of Not Guilty.
“The Solicitor-General had also told them, that the law of the case was
extremely clear. No doubt it was; but it was necessary to point out
the precise question for their consideration, before they ventured to
apply the facts of the case to that law; because the question here was
not guilt, or innocence in the abstract, for although there was strong
suspicion against the prisoner of moral guilt, yet the question they
had to try was, whether he was guilty not only of high treason, but of
that high treason which was specifically charged in this indictment.
In order, therefore, to enable them to discharge their duty fully
and fairly towards the prisoner, they must not only take into their
consideration the precise question they had to try, but also apply the
evidence produced, in order to see whether the specific charge of high
treason was made out.
“The history of the Statute of Treasons, 25 Edw. III., was well known.
It was passed in order to define what treason really was, and that the
ignorance, and even cruelty, which had previously prevailed upon the
subject, by the erection of certain acts into crimes against the state,
might be exploded. That statute contained a few short and distinct
propositions, which in fact comprehended the whole law of treason. In
the language of Lord Coke it was called the _blessed_ Statute, from
the admirable regard manifested in it for the liberty and safety of
the subject. It declared first, that whoever should compass or imagine
the death of the King, should be guilty of high treason; and, second,
whoever should levy war against the King and this realm, should be
guilty of the like offence.
“A number of other enactments of treason had taken place at different
times since then, introducing a most horrible system of cruelty and
oppression, but at length it was found necessary to return to that
blessed statute. It was true, that in the reign of his late Majesty a
statute passed for extending the law of treason. He lamented that such
a statute should ever have passed, and still more that any occasion for
it should ever have existed. Upon both of these statutes the present
indictment was founded.
“By the 23d of Edward III. it was made treason to compass or imagine
the death of the King; and by the 36th Geo. III. it was made treason to
attempt to depose him from his kingly office.
“By the statute of Edward, it was made treason actually to levy war;
and by the statute of George, it was made treason to conspire to levy
war.
“The four charges, therefore, which they had to try, were these: Did
the prisoner at the bar compass, or imagine the death of the King? Did
he conspire to depose him from his imperial dignity? Did he actually
levy war against his Majesty? And did he conspire to levy war with
an intention to compel his Majesty to change the measures of his
government by force? These were the precise issues they had to try, and
whatever might be their opinion of his guilt, as it respected other
charges still pending over him, and for which punishment would reach
him if he were guilty, yet unless they were conscientiously satisfied
that he had actually committed some one of these four offences, they
were bound to pronounce him Not Guilty.
“It had been admitted by the Solicitor General, that if the case in all
its parts was not proved by unequivocal testimony, they were bound to
acquit the prisoner; and he apologized for the evidence he proposed to
offer, by saying, that in all cases of conspiracy it was necessary to
have the evidence of some of the conspirators, in order to ascertain
the purposes of their dark consultations.
“This was another of the miseries resulting from a departure from the
statute of Edward. That admirable statute enacted, that before a man
should be found guilty of the treasons there set out, he shall be
‘proveably convict’ of the same.
“Upon the meaning of the words ‘proveably convict,’ the great Lord Coke
had written a whole section, shewing that they did not mean probably
convict, but convict by the most unequivocal and satisfactory evidence.
“The object of the statute, therefore, in making this wholesome
provision was to protect his Majesty’s subjects, whose lives might
be at the mercy of the most infamous of mankind. It was necessary,
therefore, that the Jury should examine the facts proved with the most
scrupulous circumspection, before they made up their minds to the
conclusion of the prisoner’s guilt.
“The Solicitor General had admitted, that the evidence of the
conspirators ought not to be believed unless it was confirmed in
all its material circumstances. It was to be observed, that the
confirmation alluded to, was not meant to apply to collateral facts
irrelevant to the matter in issue, but to the whole body and substance
of the evidence; and therefore if they found that the material
witnesses to establish the conspiracy were not confirmed in the
substantial part of their evidence, it was their duty to pronounce a
verdict of acquittal.
“The learned counsel admitted that there was sufficient evidence to
establish an intention on the part of the prisoners to commit, perhaps,
a dreadful riot, to commit murder, and to effect the destruction of
houses; but he strenuously urged, that this was not sufficient to
make out the crime of high treason, as alleged in the indictment. He
adverted to the evidence of Adams, and other witnesses, and contended
that it was wholly incredible, and inconsistent in every part.
“But supposing the conspiracy which they had proved, really to have
existed, he urged that it was the most ridiculous plot that could
ever enter into the mind of the most infatuated man, considering the
absolute destitution of means to carry it into effect. The records of
fiction and of history did not furnish an instance of such a wild and
chimerical scheme.
“After commenting with considerable ingenuity, upon the evidence of
the principal witnesses of the Crown, he proceeded to deprecate in
strong terms the doctrine of constructive treason; and called upon the
Jury, as guardians of their own and the public liberties, to make a
stand against the further extension of this abominable doctrine, which
had been condemned by Lord Hale, and some of the wisest judges that
ever sat to administer justice. Returning again to the description
of evidence adduced to support the conspiracy, he insisted that they
could give no credence to Adams, who stood confessed the betrayer of
his companions, a traitor to his king, a rebel against his country,
intending to assassinate and murder his fellow-subjects, an apostate to
his religion, and a scoffer of his God.
“Would a British Jury in this sanctuary of justice sacrifice to
torture and death eleven men, merely upon the evidence of such a
self-convicted wretch? He had stated to the Jury the danger to which
our liberties and lives would be exposed, if a man could be convicted
of high treason, on evidence like that which they had heard; but as he
preferred supporting himself in all cases by the authority of great
men, he would remind them of what the present Solicitor-General had
said, without telling them on what occasion the words to which he would
allude had been spoken, or how long it was ago.
“A witness was called to discredit the testimony of another. He, on
cross-examination, admitted, that he had accompanied a person to
the Park, who went there for the purpose of extorting money from
individuals, by charging them with certain practices. On this occasion
the natural feelings of his learned friend, the Solicitor-General,
broke forth, and he inquired, ‘Would any honest man--would any man
worthy of belief in a court of justice, accompany a person who went
on such an expedition? Would any man, entitled to credit with a jury,
agree with another in such a plan to extort money?’ This, in point of
fact, had not been done by the witness to whom he alluded; but he, Mr.
Curwood, must beg to apply this sort of reasoning to the principal
witness for the prosecution, and ask if a man who had acted as Adams
had done was entitled to belief in a court of justice.
“Was a man entitled to credit, who, like Adams, was an apostate, a
traitor, a rebel, a betrayer of his companions, a murderer, and an
assassin--all of which he admitted that he had intended to be?
“Yet such a man had his learned friend put up on the present occasion.
But who would believe him, unless, indeed, it were made out, which no
lawyer would say it was, that such a man was entitled to credit when he
came into a court of justice to seek the lives of men, though not in
other cases, where his object was different.
“If this principle were not established, then out of their own mouths
was the principal witness for the prosecution condemned. He called upon
the Jury to look if he were confirmed, he would not say by good, but
even by infamous witnesses. It was nothing that he was corroborated in
various insignificant particulars, but he was borne out in nothing that
went to prove that the prisoner at the bar had committed high treason;
and he therefore begged of them, under these circumstances, to give
that verdict which would dismiss Adams with shame, as a man not to be
believed in a court of justice on his oath.
“If such a man were corroborated by other infamous witnesses, it would,
in fact, be no confirmation; how, then, did the case stand when they
found that he was not even confirmed by the testimony of those who
were almost as infamous as himself. Having done with Adams, the next
witness was Hyden, he described himself to have formerly belonged to
a shoe-making club, and to have been introduced to Thistlewood in the
month of February. And what was the first proposal made to him? Why,
Thistlewood was represented to have said, without any disguise or
reserve, “Will you be one to murder his Majesty’s ministers?”
“Good God!--what must that man be whose heart would not revolt with
horror from such a proposal? But this person expressed no disgust at
the plan with which he was thus made acquainted. Was this man then more
worthy of belief, than one who would join with another to extort money?
“Was this, to use the words of the Solicitor-General, a man worthy of
belief in a court of justice? The answer that his learned friend would
feel disposed to give must be, that he was not. Then what confirmation
could his evidence supply to that of Adams? It was not necessary for
him to go through all the details of the conversations between this
witness and Adams, but he must remark, that of these not one word went
to confirm the facts that would amount to the crime of high treason,
though they all tended to establish a plot to assassinate his Majesty’s
ministers.
“It was true, that something was stated to have been said of seizing
the cannon in the Artillery-Ground, and of retreating to the Mansion
House. All this proved that a great riot was in contemplation, but it
evinced no intention of committing high treason. This witness described
himself to have joined in the plan, and to have told the conspirators
that he would be with them.
“The next witness was Monument. He had sworn that he was told by
Thistlewood he ought to get arms, as all his (Thistlewood’s) friends
were armed. At that period it could not be denied, that there was a
great ferment in the public mind, in consequence of the transactions
which had taken place at Manchester but a short time before.
“Many of the warmest friends to the measures of government were
of opinion, that an inquiry into those transactions ought to be
instituted; while others, without reserve, termed what had occurred
at Manchester ‘a massacre,’ and declared that since they were liable
to be so dispersed at public meetings, they would attend them armed,
that they might be prepared to defend themselves. Thistlewood had used
words to this effect. He (Mr. Curwood) would not deny that to go armed
to such meetings, was a desperate resistance of the law; but he would
maintain that it did not amount to high treason, and he entreated the
Jury never to dismiss from their minds that it was for high treason,
and for high treason only, that they were trying the prisoner at
the bar, and not for disobedience to the law in other respects; and
therefore if the facts proved did not amount to high treason, it would
be their duty to return a verdict of NOT GUILTY.
“The witness, Monument, had confirmed the evidence given of the
existence of a plan for the assassination of his Majesty’s Ministers,
and for creating a riot; but he proved nothing respecting that
proclamation which was said to have been prepared by Thistlewood, and
which alone went to give the conspiracy the character imputed to it in
the present indictment. But the witness, Monument, he contended, had
shewn himself during this trial to be the same unfeeling villain he had
set out with being; yet, from the aggregate of infamy brought forward
on this occasion, there resulted no proof of high treason.
“Palin and Cook, who might be able to give evidence in favour of the
defence, he shewed that he had no means of bringing forward, as, if
they were to offer that testimony which might acquit the prisoner
of high treason, they would bring themselves into peril, as the
Attorney-General well knew that if they were to appear in the witness’s
box, they would not be suffered to depart with impunity. Eleanor Walker
and Mary Rogers had only proved the taking of the room in which the
consultations of the conspirators were held. This was not denied.
It was admitted that they held consultations, and for a nefarious
purpose; but the question for the Jury to try was, whether or not these
consultations related to high treason. Hale had also proved the room
and the purchasing of some sheets of cartridge paper. This he (Mr. C.)
contended, was wanting for their cartridges. Adams said it was for
their proclamations, but of this there was no proof, and the fragments
of cartridge paper that had been found were not written upon.
“The three next witnesses proved various facts connected with the plan
of assassination, but nothing that amounted to high treason; and what
was proved to have taken place in Cato-street, though murder and riot
appeared to have been in contemplation, he could discover nothing like
‘a levying of war.’ If they had not ‘levied war against the King,’
conspiring to do that which had been done, could not be ‘conspiring to
levy war against the King.’
“This was a question which must be left to the understandings of the
Jury. They all knew what war was between different states. It was
carried on by large bodies of men, formed into companies, under the
direction of proper officers, and accompanied by all the _materiel_ of
war. A civil war was the same, but that one part of a state in a civil
war was opposed to another part of the same state. It would be for them
to determine whether enough had been proved to shew that any thing like
war had been levied. It had been laid down by Sir Matthew Hale, that
any disturbance was not necessarily a ‘levying of war;’ for in that
case every riot would be high treason. To constitute a levying of war,
there must be something worse than a common riot or outrage; ‘there
must be a _species belli_?’
“Could the Jury find this on the present occasion? The utmost force
that had been mentioned consisted of forty men. These forty men were to
be marched with unfurled banners through the city, to take two cannon
in Gray’s Inn-lane, and six in the Artillery Ground, and they were to
possess themselves of the Mansion-house. Was this a levying of war?
That the conspirators had been formed into companies was more than he
had ever heard, and where was the money that was to carry on the war?
In what holes and corners had they hidden themselves that nothing was
known of them?
“From the circumstances to which he had called their attention, he
would leave the Jury to judge how far the charge of levying war,
or conspiring to levy war against the King had been made out. In
a former instance, if he recollected right, the same charges were
brought forward on a former trial that were now preferred, and in that
case there were stronger circumstances--great bodies of persons had
assembled, gunsmiths’ shops had been broken open, and arms had been
stolen from them; yet in that case the Jury, not denying the existence
of any guilt whatever, had rightly determined, as he thought, and as he
hoped the present Jury would do, that the party accused was not guilty
of high treason.
“He then shewed, that to endeavour to remove the ministers from their
situations was not a crime; and he argued, that to attempt removing
them by force was not high treason.
“He trusted the Jury would believe that he contemplated the plot to
assassinate ministers with all the horror and indignation that such a
design was calculated to inspire; but he could not sacrifice his duty
to his feelings, and he hoped that they would feel as he did, and feel
how necessary it was for the safety of other lives, that those who
were concerned in it should not for that offence be convicted of high
treason. It was most consoling to him to reflect, that he should be
followed by his learned friend, who would address them with much more
eloquence than he could command.
“He concluded by calling on them, whatever their feelings might be, to
look at all the circumstances of the case, and see if they could find
it proved by good, or even by bad witnesses, that there had been a
levying of war. If they did find this, he could not expect a verdict;
but if they found, as he thought they must, that there had been no
levying of war, they must return a verdict of “NOT GUILTY.”