Part 17

Mr. JOSEPH DOANE examined by Mr. Adolphus.--I am called the Court Reporter; I prepare for the newspapers an account of the movements of the Court, the cabinet dinners, _&c._ I send the same accounts to six papers, among others to _The New Times_, [Looked at the announcement in the _New Times_, of the cabinet dinner, on Tuesday the 22d of February.] The intelligence respecting the Court in this paper I sent. The paragraph respecting the cabinet dinner, from the wording, I think I did not send. I think so from the use of the word “grand;” cabinet dinners are always alike, and I do not think I used the word “grand.”

ANDREW MITCHELL: I am printer of _The New Times_; I produce the original of the paragraph respecting the cabinet dinner, announced in _The New Times_ on the 22d of February.

Mr. Doane recalled: That is not my manuscript; I always write from a manifold.

Andrew Mitchell: I did not receive that from Mr. Doane, but from a person of the name of Lavenue, who furnishes things in the same way.

JOHN WHITTAKER: I searched in eleven newspapers of the 22d of February for the annunciation of a cabinet dinner at Lord Harrowby’s, and in none of those papers was there such an announcement as that in _The New Times_.

The Attorney-General: These papers ought to be here.

The Chief Justice Abbot: Strictly speaking, they ought to be here.

The witness: _The New Times_ alone had the annunciation of the dinner at Lord Harrowby’s on the 22d of February.

Mr. Adolphus: This is all the evidence I intend to offer on the part of the prisoner.

Mr. Gurney: I wish, my Lord, that Dwyer should be again called.--The witness, Dwyer, was then again put in the box, and examined by Mr. Gurney: I do not know a man of the name of Hucklestone.--[The witness Hucklestone was desired to stand up.]--Dwyer: I know that man, but did not know his name was Hucklestone. I have met him in Oxford-road. Not in a public-house. I never proposed to him to charge any person with an unnatural offence. In February last I was at work at the parish mill, and got three shillings. I have a wife and family.

Cross-examined: I did not know Hucklestone by name. I saw him with other chaps at the corner of James-street, near where I live; but I never associated with him. I have seen him in Hyde-park. I never went into a public-house with him. I resorted to the Rodney’s-Head, but never knew him to resort there. I have not repeatedly met him in a public-house. I don’t know that I can swear I never saw him in a public-house. I will swear I have not been with him at the Rodney’s-Head within this three months. I am a bricklayer by trade, and worked fourteen years for one master.

Mr. Adolphus now entreated permission to be allowed till the ensuing day to prepare himself to address the Jury on the part of the prisoner. The state of exhaustion to which he had been reduced, as well as the shortness of the time which had elapsed since he had received his instructions, and the great importance of the duty which he had to perform, where the life of a fellow-creature was at stake, the more imperiously impelled him to entreat this indulgence, if consistent with the views of the Court.

The Lord Chief Justice felt the propriety of the appeal, and after some conversation relative to the convenience of the Jury, the Court was adjourned till the following morning.

THIRD DAY, WEDNESDAY, APRIL 19, 1820.

The Court opened again at nine o’clock this morning, and a few minutes after Mr. ADOLPHUS rose to address the Jury on behalf of the prisoner, and commenced by observing, that “he could not request their attention to the feeble and humble efforts which he was going to make in defence of the prisoner at the bar, without returning them his sincere thanks for the kind and gracious manner in which they had conceded to him further time for the preparation of his defence. Under all the circumstances of the case, the situation in which he (Mr. Adolphus) stood was sufficiently distressing; but it would have been still more so if he had been compelled to address them yesterday evening with a mass of evidence totally undigested, with a memory wandering over all, but steadily directed to none of the points which had come out during the trial; and without any of that simplification of the case which he had been able to effect, though imperfectly, in the few hours which, by their kindness, he had been able to steal from sleep.

“The inquiry in which they were then engaged was a most anxious and important inquiry: indeed, so anxious and so important was it that it was only natural to expect that the minds of counsel engaged in conducting it would sink under the heavy task imposed upon them. During the course of his professional career many trials similar to the present had taken place: but in none of them did the parties accused labour under such dreadful charges as were now brought against the prisoner at the bar; in none of them had they been so totally deprived of all assistance and support as the unfortunate individual had been on whose fate they now stood impanelled to decide.

“To say that he (Thistlewood) had all the weight of office arrayed against him--to say that the prosecution was conducted with all the talent and all the power of Government, was to say nothing more than that Thistlewood was indicted for high treason. He (Mr. Adolphus) meant not to blame the Government for exerting all its energies in a case like the present; by no means--the Crown had, on all occasions, and particularly on an occasion like this, a right to demand of its best servants their best services: he only meant to contrast the difficulties against which Thistlewood had to contend with those which had surrounded other unfortunate men in his situation.

“Against the great legal talent which had been employed against them by the Crown, there had come forward advocates of high character, and not inferior ability--advocates who voluntarily embarked themselves in the cause of their clients--gave up their whole time and attention to their interests, methodized and simplified the evidence necessary to maintain them, and entered the Court prepared to meet the case brought forward by the Crown on every one of its points and bearings.

“Far different was the case of the unhappy man then standing at their bar.

“On the evening previous to his trial he was scarcely acquainted with the name of the counsel who was to defend him: and that counsel had scarcely more early information of the grounds on which his defence was to be rested. He (Mr. Adolphus) could assure them that he was only chosen counsel for Thistlewood on Thursday last; that unavoidable business had kept him out of town during the whole of Friday; and that he had appeared before them on the Monday with such information as he could collect in the interim. He deplored this circumstance, but he could not complain of it. His want of ability and preparation was not, however, the only circumstance which rendered Thistlewood’s case more desperate than that of the individuals who had formerly been placed in his situation. Many of them had been allied with, or supported by, men of power, and rank, and influence in the country. Thistlewood, on the contrary, was aided by no party, was supported by no subscription, but was deserted by men of every class and party in the community. He (Mr. Adolphus) had received no assistance, no information, no instructions, from him; all that he knew of the case was derived from the materials which the solicitor, the gratuitous solicitor for the defence (Mr. Harmer), had been able to collect within the last few days.

“Besides these circumstances was another still more extraordinary and unfortunate. At the state trials of 1794, whoever was discharged by a verdict of his countrymen was discharged at once from all further prosecution; and with the inquiry of that Court ended all inquiry into his conduct.

“This man, Thistlewood, however, was so beset, that, even though he obtained at their hands a verdict of acquittal upon this charge, he had to undergo a similar trial upon other indictments: indeed he (Mr. Adolphus) did not hesitate to say that he (Thistlewood) was surrounded by every danger which could possibly environ the life of a single individual. It appeared as if this melancholy choice alone were left him, whether he would have the execution of his sentence end with the severing of his head from his body, or whether he would have his body given up after his execution to the dissecting knife of the surgeon. If his guilt were of such a nature as to demand that penalty to be added to the others inflicted by the law, he had only himself to blame for it: far was it from his (Mr. Adolphus’s) intention to palliate his conduct upon that point: the only reason which he had for even alluding to it was to implore them to place out of their consideration every circumstance which was not connected with the subject of their present investigation, and which had not been brought regularly before them in the course of the trial.

“The Attorney-General had made the same request to them, and it had well become his character and legal knowledge to do so. It was not less his duty as a man and as a Christian, than as a high officer of the Crown, to give them that advice: for, bound as he was to protect the interests of the Crown, he was not less bound not to exercise his power in wantonly running down those subjects, who were living under its fostering care and protection. Made, then, as this request had been made to them by the Attorney-General, he (Mr. Adolphus) could not help repeating it; for he was well aware how difficult it was to dismiss from the mind the impressions of ill-will and dislike which were naturally conceived against any one who was, or ever had been, the subject of general reprobation.

“On occasions like the present a man’s usual convictions stole into his mind, in spite of himself: it therefore became them to be doubly on their guard, and to view the case then under their consideration as if they had never heard the name of Thistlewood before, and as if they had never received any other information than that which had come under their notice in the course of the trial, upon which, and upon which alone, they were sworn to give their verdict. He agreed with the Attorney-General that the present was a case of infinite importance; not, however, to the prisoner at the bar merely, whose life was at a stake, (indeed in that point of view it was of less importance than in any other) but also to the state and to all posterity.

“It was of importance to the state that verdicts should be given upon strict evidence alone, and not upon favourable or unfavourable impressions conceived by the Jury regarding the party on his trial. It was of importance also to posterity; because if, as against a bad man, a certain kind of evidence should now be allowed to procure conviction, it would, in time, be also allowed to procure conviction against a good one; and, in that case nobody could tell whose fame might not be impeached, whose property might not be injured, whose life might not be destroyed, by the same kind of evidence as had been produced on this trial; evidence which ought never to have the credence of any jury, or the sanction of any court.

“It was not, therefore, so much for the value of Thistlewood’s life (though God forbid that he should undervalue the life of any man) as for the value of a precedent in a case of treason, that he was then contending; for if a charge of high treason could be substantiated against any British subject on such evidence as had just been adduced there would be an end to all our well-founded boasts of the excellence of our law regarding high treason. Such an event, however, he, for one, did not anticipate, when he recollected with what care the law of treason had been guarded by the legislature, and with what caution executed by our juries, ever since the period of its first institution. Nor was such caution, vigilance, and correctness, as had been always exhibited by our juries, with some few exceptions, and those in bad times, unnecessary or uncalled-for.

“An accusation of high treason was a fearful accusation. In all other criminal cases, from a simple assault up to a murder, the King though not the real, was the ostensible prosecutor: in a case of high treason, however, the King was not merely the ostensible but also the real prosecutor; he was directly arrayed against the prisoner, and therefore it was the imperative duty of the Jury to see that the subject was not oppressed. The present case of high treason was as important as any of those which had ever preceded it; and the Jury ought, therefore, to be peculiarly careful not to allow one tittle of evidence to weigh with them which had not been admitted on former occasions, and, if they had any doubts with regard to its admissibility, ought to lean to the prisoner, and not to the Crown, however interested they might be in its preservation, and the preservation of its authority.

“He had before had occasion to state to them, that the defence of the prisoner at the bar had come to him, in the course of his professional business, as an enforced duty. He had not sought it; he had not refused it; indeed, as an advocate, he could do neither one nor the other. Standing, however, as he did, in that Court, as the advocate, the unfee’d, and therefore, in some respect, the voluntary advocate of the prisoner Thistlewood, he deemed it right (unnecessary and improper as it might be on any other occasion for an advocate to press his own political opinions on the Jury) to state that, during the whole of his life he had never given his assent to any proposition tending to change the constitution, as established at the Revolution, either in church or state. He had been born a subject of his late most gracious Majesty; to him, whilst alive, he had paid a subject’s loyal obedience. He was now a subject of his present most gracious Majesty, and the allegiance which he had paid to the father he willingly transferred, as his due to the son.

“To the questions which had lately agitated the country, he had never lent himself for a single moment; on the contrary, he had always opposed, to the utmost of his power, every design of faction and innovation. Thus much he thought it necessary to state in the peculiar situation in which he stood; but making as he had that declaration of his political principles, he also felt, both as a man and as an Englishman, that he had a strong principle to advance and establish in this defence; and he therefore trusted that, if any persons were present who felt an interest in the fate of the prisoner, they would not think that he would relax, in his efforts on his (Thistlewood’s) behalf, on account of the difference of their political opinions. If any thought that he would relax, he was sorry that they should entertain such an opinion of him: he would, however, use every exertion to make a fair defence for the prisoner: if it were not conducted with ability, it would be not from want of intention, but from want of ability, which would be the prisoner’s misfortune as well as his own.

“The learned Counsel then proceeded to observe, that the line of defence which he found it necessary to pursue was the most difficult which it had ever fallen to the lot of an advocate to make good; and he should here be deficient in respect to the good sense and talent of the jury, if he pretended to assert that the prisoner at the bar was perfectly guiltless. He was afraid that it was but too evident that he (Thistlewood) and those with whom he was connected had meditated assassination, a crime which was little less horrible than the commission of it. He did not intend to palliate Thistlewood’s conduct in doing so--far from it: it was a crime not to be palliated: the very blood recoiled from it--the best feelings of human nature revolted against it, and the indignation and execration of society always followed it. Still he thought it possible that Thistlewood, though he might be guilty of murder and the other crimes imputed to him in the various indictments, might not be guilty of high treason. Unless, therefore, he was fully and clearly proved to be so, it was their duty to acquit him; and in so acquitting him, in spite of all the odium and prejudice which surrounded him, they would be doing honour to themselves, and benefit to their posterity.

“He was not weak enough to say this in any hope that, by flattering them, he should obtain their verdict; he should be sorry to obtain it on such terms; for if they gave a verdict for him against the evidence, they would be doing no honour to themselves, and a great injury to their posterity. He had once thought of stating to them, at some length, the nature of the law of treason, but he had afterwards found reason to change his opinion, it having been suggested to him that the law on that subject would come better to them from the Court. He should therefore proceed, before he entered into a minute examination of the evidence (on the general nature of it he had already made some comments) to state to them the nature of the indictment.

“They had heard the indictment read over to them, and would have perceived, unacquainted as they were with the technicalities of the law, that the same offence was charged against the prisoner, though somewhat varied in terms. There were four charges, or counts, to which he particularly wished to call their attention; there were to each of these ten or eleven overt acts, all of which, it had been said, must be considered as shewing the intention with which the prisoner had acted.

“The prisoner was charged, in the first count, with “compassing, imagining, inventing, devising, and intending to deprive and depose our Lord the King, from the style, honour, and kingly name of the imperial crown of this realm.” The overt acts stated in the indictment were, conspiring to assassinate several of the Privy-Council; procuring large quantities of arms with intent to assassinate them; as also to subvert and destroy the constitution as by law established; issuing proclamations to the King’s subjects containing solicitations to aid and assist them in making and levying insurrection; and various other acts specified therein. Before, however, they found the prisoner guilty upon this count; they ought to be convinced that the intention to depose the King existed previously, and not subsequently, to the commission of these overt acts. For though they should be perfectly convinced that the prisoner had gone to Lord Harrowby’s house with the intention of killing the King’s ministers, that fact alone did not render him guilty of high treason: it was necessary that a treasonable intention should be first proved to exist.

“To meditate the assassination of a privy-councillor was certainly a crime of great magnitude, and by 3 Hen. VII. cap. 14., had been made a felony; and by a later statute, that of 9th Anne, cap. 16, to assault or attempt to kill one in the execution of his office was made a felony, without benefit of clergy. Thus it was clear that to kill a privy-councillor was not in itself an act of high treason, unless it were coupled with other acts tending to prove a treasonable intention previously existing in the mind of the prisoner. They must, therefore, before they brought in a verdict of guilty against him, be convinced of one of these four points: either that he did intend to deprive and depose our Lord the King from the style, honour, and kingly name of the imperial crown of this realm; or that he did intend to excite rebellion and insurrection within this realm, in order to subvert the government; or that he did intend to levy war against the King, in order, by force and restraint, to compel him to change his measures and councils; or that he did intend, with force and arms, to effect those purposes.

“These were the points which must be established before they could find the prisoner at the bar guilty of high treason; and what was the evidence produced to establish them? He did not hesitate to affirm, that never was evidence so weak tendered to prove charges so heinous. It was contradictory, it was inadmissible, it was incredible, coming from any quarter, but still more incredible, coming, as it did, from men destitute of all character, avowedly engaged in a conspiracy to effect a hideous murder, and therefore men of such a description as ought never to be allowed by their oaths to bring the life of man into danger at all. Before he proceeded any further, it would be requisite to call their attention to the degree of credit which ought to belong to an accomplice. The Attorney-General, in calling an accomplice as witness, had stated that he was to be believed, whenever he was supported by other collateral evidence. On this doctrine he would not comment just at present, but would content himself with observing, that it must be clear to all of them that the whole charge of high treason rested in this case solely on the evidence of an accomplice. For if the testimony of Adams were to be dismissed from their notice, there was not a single syllable said by all the other witnesses who had been produced, (so loosely indeed had they supported the testimony of Adams) tending to convict Thistlewood of high treason.

“The question then came to this point, whether a charge of high treason ought to be considered as made out, which rested solely on the testimony of an accomplice, and an accomplice, too, like Adams. He maintained that it ought not, for if Adams were believed, no witness could hereafter be rejected as unworthy of credit, and consequently no man’s life or honour could be considered secure.” An accomplice, however, continued the Attorney-General, not indeed in those very words, but in words to that effect, “ought not to be expected to receive support on every point which he mentions in evidence, because if he were to receive such support, there would be no reason to call him at all.”