Part 7

Up to the time of his last appearance before the Privy-Council, he made no inquiries respecting his family, but was particular in his questions as to the persons who had been arrested. Among others, he mentioned the name of Palin, for whose apprehension a reward of two hundred pounds had been offered, and again describing in the most minute manner the person of Brunt, with an evident intention to avoid mentioning his name, he asked if he was arrested? Upon these heads he received no satisfactory answer.

Mrs. Thistlewood is a smart, genteel little woman, dresses well, and from the first seemed perfectly alive to the situation of her husband, in whose political sentiments she heartily concurs. On the officers going to search her lodgings, she did not manifest any of that alarm which, in a female, might be considered natural. She received them with calmness, accompanied by a certain air of dignity, and demanded their authority for searching her premises. Being satisfied on this head, she permitted the search to be made without further hindrance. She has a son, who seems a genteel ingenious youth. When she obtained permission to visit her husband, the interview always took place in the presence of an officer, and her person was scrupulously searched, even to the removal of her stays and cap, and these precautions were continued from first to last.

The prisoners all standing fully committed on the clearest and most satisfactory evidence, the preparations for their trial commenced, and on the 8th of March the following Special Commission of Oyer and Terminer was issued by the Crown:--

GEORGE the FOURTH, by the grace of God, of the united kingdom of Great Britain and Ireland, King, defender of the Faith, to our most dear cousin, William Henry Duke of Portland; our well-beloved and faithful Councillors, Sir Charles Abbott, knight, Chief-Justice, assigned to hold Pleas before us; Sir Robert Dallas, knight, Chief-Justice of our Court of Common Pleas; Sir Richard Richards, knight, Chief-Baron of our Court of Exchequer; our beloved and faithful Sir William Garrow, knight, one of the Barons of our said Court of Exchequer; Sir William Draper Best, knight, one of the Justices assigned to hold Pleas before us; Sir John Richardson, knight, one of the Justices of our said Court of Common Pleas; Sir John Silvester, baronet; Newman Knowlys, Francis Const, Charles Bosanquet, Charles Trelawny Brereton, James Clitherow, James Ferguson, Edmond Alexander Howard, Richard Paul Joddrell, Samuel Purkis, Thomas Wood, and Peregrine Dealtry, Esqrs., greeting.

+Know ye+ that we have assigned you, and any two or more of you (of whom one of you, the aforesaid Sir Charles Abbot, Sir Robert Dallas, Sir Richard Richards, Sir William Garrow, Sir William Draper Best, and Sir John Richardson, we will shall be one) our Justices and Commissioners to inquire by the oath of good and lawful men of our county of Middlesex, of all High Treasons and misprisions of High Treason, (other than such as relate to the coin), and of the murder of one Richard Smithers, deceased, and of any other crime or offence touching the death of the said Richard Smithers; and of any offence or offences against, touching, or concerning the persons of Frederick Fitzclarence, William Legge, James Ellis, John Surman, William Westcoatt, William Charles Brooks, John Muddock, and Benjamin Gill, or any of them, contrary to the form of an Act made and passed in the forty-third year of the reign of our late royal father, King George the Third, entitled “An Act for the further prevention of malicious shooting, and attempting to discharge loaded fire-arms, stabbing, cutting, wounding, poisoning, and the malicious using of means to procure the miscarriage of women; and also the malicious setting fire to buildings;” and also for repealing a certain

## Act made in England, in the twenty-first year of the late King

James the First, entitled, “An Act to prevent the destroying and murdering of bastard children;” and also an Act made in Ireland in the sixth year of the late Queen Anne, also entitled, “An Act to prevent the destroying and murdering of bastard children, and for making other provisions in lieu thereof;” and also the accessories of them, or any of them, within our county aforesaid, as well within liberties as without, by whomsoever and in what manner soever done, committed, or perpetrated, when, how, and after what manner; and of all other articles and circumstances concerning the premises, and every or any of them, in any manner whatsoever; and the said treasons and other the premises according to the laws and customs of England for this time to hear and determine; and therefore we command you, that at a certain day and place, which you or any two or more of you (of whom one of you, the said Sir Charles Abbott, Sir Robert Dallas, Sir Richard Richards, Sir William Garrow, Sir William Draper Best, and Sir John Richardson, we will shall be one), shall for this purpose appoint, you make diligent inquiries into the premises, and that you do hear and determine all and singular the premises aforesaid, and do cause to be done therein what to justice appertains, according to the laws and customs of England; saving to us the amerciaments, and other things from thence to us accruing. We do also command all and every our officers, ministers, and subjects, by virtue of these presents, that they attend, advise, obey, and assist you in the execution of the premises, in all things as it behoves them. And we do also command, by these presents, our sheriff of our said county of Middlesex, that at such certain day and place, as you, or any two or more of you, (of whom one of you, the aforesaid Sir Charles Abbott, Sir Robert Dallas, Sir Richard Richards, Sir William Garrow, Sir William Draper Best, and Sir John Richardson, we will shall be one), shall make known to him, he do cause to come before you, or any two or more of you (of whom one of you, the aforesaid Sir Charles Abbott, Sir Robert Dallas Sir Richard Richards, Sir William Garrow, Sir William Draper Best, and Sir John Richardson, we will shall be one), such and so many good and lawful men of our said county, as well within liberties as without, by whom the truth of the matter in the premises may be better known and inquired into. In witness whereof, we have caused these our letters to be patent. Witness ourself at Westminster, the eighth day of March, in the first year of our reign.

BATHURST.

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.