fl STATE TRIALS FOR HIGH TREASON, EMBELLISHED WITH PORTRAITS. PART THE FIRST, CONTAINING THE TRIAL OF THOMAS HARDY, REPORTED BY A STUDENT IN THE TEMPLE. TO WHICU ts PREFIXED LORD CHIEF JUSTICE EYRE'S Charge to the GRAND JURT. I. Original Observations on the Charge and the Laws againil High Treafon. II. Names of the Grand Jury. III. Proceedings on finding the Bills of Indiftment. IV. Particulars of Mr. Holcroft's Sur- render and Commitment, with_atten- dant Observations. V. Copy of the Bill of Indiftmem. VI. Lilt of the Petty Jury. VII. Wknefles for the Crown. VIII. Names of the principal Perfoni fubjxeriaed by the Pnloners. IX. Counfel for the Crown. X. Counfel tor the Prilbners. WITH EVERY OTHER IMPORTANT OCCURRENCE RESPECT- ING THIS MOST INTERESTING SUBJECT OF PUBLIC CONCERN AND CURIOSITY. LONDON: Printed for B. CROSBY, No. 4, Stationers Court, Ludgafe Streej; Ltc, Street, Covent Garden ; MASON and WHITX, Piccadilly; and all the Bookfellers under the Royal Exchange. 1 7 9 4- 271 ADVERTISEMENT! HPHE prefent trials for High Treafon, being -*- jedis of equal importance and curiofhy to ever/ native of the realm, this work is intended to contain the mod minute and accurate detail of every pro- ceeding, restive to the judicial enquiries into the truth or fallacy of the charges exhibited in the feve- ral bills of indictment found againft the prifoners. As thoufands now exifting, and yet unborn, may- be implicated in the prefent deciftons of the Law refpedbing High Treafon, the ftricleft attention will be paid to the opinions of the court, the pleadings of the counfel, the reference to precedents, and the fiinclio.li of the great law authorities that may be ad- duced. We (hall be faithful to'the difcharge of fuch an. important undertaking, as that of publifhing effen- tial information for every fubjec~t in fo interefting a point as High Treafon, in which the welfare of a na- tion is involved, and efpccially as individuals of the purcft intentions may be endangered. Particular at- tention will be given to whatever relates to the exifr- ing laws, their application to the prefent circum- ftances, and the contfruclion of the ftatutes refpecling the crime. In a word, whatever can tend to inform the mind, gratify the curioiity, and direct every fubject in the knowledge of a law wherein the firft of civilians ha\ e looked with awe, doubt, and perplexity, will be inoft carefully recorded in the feries of our publica- tions of the trials, as they happen in their deftined order of fuccdlion. A 2 OBSERVATIONS ON HIGH TREASON. LORD Chief Juftice Eyre having, in his Charge to the Grand Jury, informed them that they were aflembled under the authority of the King's commiflion, ifiued for hearing and de- termining .the offences of High Treafon and mifprifions ot Trea- fan againft the perfon and authority of the King, induces us to ftate a few preliminary obfervations on the exitting law refpe&ing this fpecies of criminality. According to the ftatute of the 25th of Edw. III. which was exprefsly cnadted to define what was High-Treafon, fo as to fe- cure the fubjel from arbitrary decifions, an overt al muft be proved by two witneffes, of compafling or imagining the death of the King. Having ftated that the fubftantiating the crime of High Trea- fon depends on overt ats being proved, it .is necefiary to obferve what conftitutes an overt al. According to every principle of law, it muft be an a& determined or executed for the fpecific purpofe of comparing the death of the King. Without this can be ptoved, neither the defign nor the facl: can be deemed High Xreafon. No plans or operations that are not prouably directed to effct the above purpofe, are to be confidered as overt afts of this atrocious crime. The moft certain rule i*, therefore, by the a& of Edw. III. eftabliihed for directing the Jury in their deci- fion on the charges of High Treafon fubmitted to their inquiry. Overt acts, however various in their nature, unlefs definite in their object, have no law to fan&ion their being clalTed in the criminal lifts of treafons. The defign or " wicked imagination of the heart" mtift be obvioufly, and not conftru&ively, tending to the atrocious purpofe of comparing or imagining the death of the King But, unhappily for the fubjet, arbitrary monarchs, fervile judges, and dependant juries, have abufed a ftatute that every perfon mould admire for it's fimplicity, humanity, and per- fpicuity. In the reign of Charles II. one Gibbs was executed for High Treafon, who had only heard treafonable words fpoken againft the King, and had not difcovered the perfon who uttered them. And although this happened from his ignorance of the law, and he had hazarded his life in defence of Charles *I. againft the fifth-monarchy men, yet inch was the vindictive per- fecution of that rtign, that he fuffered equally with the molt atrocious of traitors. Such a&s of tyrannical feverity could no but excite the greateft jealou r y [ 5 3 jealoufy in th$ miuds of the people refpefting the inveftigation of charges for High Treafon. Although it is a crime which mnft be abhorrent to the citizen of integrity and patriotifm, yet it lias fmce been confidered as a fubjecl: of the moil alarming import with regard to the abufe of it's profecution. We, therefore, cannot but agree \vith Mr. Juftice Blackftone, wjio faye, "as this is the higheft civil crime, (confidered as a member of the community) any man can poffibly commit, it ought, therefore, to be precifely determined. For if the crime of treafon be indeterminate, this alone (fays the prefident Montef- quieu) is fufficient to make any governnent degenerate into arbi- trary power. And yet, by the ancient common law, there was a great latitude left in the bread of the judges, to determine what was treafon, or not fo: whereby the creatures of -tyrannical Princes had opportunity to create abundance of conjlruSUve Treafons ; that is, to raife by forced and arbitrary conftruclion, offences into the crime and punifhment of Treafon, which were never fufpefted to be fuch.* But to remedy fuch an abufe of jurifprudence, the aft of Edward III. thus provides, " Becaufeother like cafes of Treafon may happen in time to come, which cannot be thought of, nor declared at prefent ; it is accorded, that if any other cafe,fuppofed to be, treafon, which is not above fpecified, doth happen before any judge, the judge lhall tnrry without going to the judgment of the treafon, till the caufe be fliewed and declared before the King and his Parliament, whether it ought to be judged treafon, or other felony." On this fubjecl, Sjr Matthew Hale has beftowed the mod diftinguifhed approbation. He praifes the wifdom and care of the Parliament in thus keeping judges within the bounds and limits of the . al ; by not fufFcring them to eftablifh con- ftruftive Treasons on the bahs of their arbitrary motives, the Subject is fecurtd from perfecution, and the conftitutional law is protected from violation. ReJerving cafes not fpecified in the aft of Edw. III. to the deciiiun of Parliament, prevents, as Matthew Hale obferves, Judges from running out upon their own opinions into conitrur- tive treafons. Well may, therefore, Jultice Blackftone ftatc, "This is a great fecurity to the public, the judges, and even this (acred a<5l itfclf, and k-aves a weighty memento to judges to be careful, and r.(/t over- hairy in letting in treafons by conllruc- tion and interpretation, efpecially in new cafes that have not been refolved and fettled." Matthew Hale obferves, that as the authoritative decifion of theft cufiis omijji is referved to the King aad Parliament, the deci- fion * Vol. iv. page 75. edit. 9. 1783. fjon of the law ought to be done by a new declarative a&. And, therefore, as Bhckftoneftates, " the opinion of any one, or of bo'h Houfrs, though of very Jefp-Cl^ble weight, is n .t that fo- ]emn declaration relerr-d t.i by this act, as the only criterion for viilyini; of future treafun.'' To prove that forced and arbitrary conflmcti: ns have punifhcd individuals for treafon which they never meditated, the tncroach- ing or attempting to rxercife royal power, which the great lavr commentator judfciqujly obferve, is a very uncertain charge, was, in the 21 ft Edw. I If. held to be treafo.-i in a knight of Hert- fordfhire. - His crime was forcibly affaulting and detaining one of the King's !ubjeb until he paid him gol. although this crime deferved punifhnient, it was certainly no treafon. .There could be no compading or meditating the King's death intended by fuch an a lib mad authority. The act was plainly directed to the fole purpofe ot "obtaining payment of a debt due to the knight. And as there was no ftatute formed for the detention of the body until payment coulcl be obtain. d, the perfon adopted this mode of violence as the dernier rcfort to which he could apply for the recovery of his due. Killing the King's father or mother, or even his mefTenger,"dr Kis". judges en the bench, were deemed Treafons. On this, Blackftone fays, with great propriety, that it WQS alrnoft as tyrannical a dodtrinp as that' by the imperial conftitution of Arcadius and Honorius, which determines that any attempt or defign againn: the miniders of the Prince (hall be Treafon. To prevent fuch abufes the ftatute of 25 Edward III. as before ftated, was made. This ftatute muft therefore be our text and guide in order to examine into the fe-veral fpecies of High Treafon. The arbitrary ftat. 21. Rich. II. 0.3, which made the bare purpofe and intent of killing or depofing the King, without any overt al to demonftrate it, High Treafon, did not prefervehirn from be'ng depofed and murdered within two years afterwards. This evinces, that a King is never more expofed to danger, than when he has adopted the molt arbitrary means forhis fecurity. But fo infccure was held the life of the fubjeft by thisadt, and fo inadequate it was found to preferve the King from apprehended violence, that his fucceffor Henry IV., \vith equal wifdom ami magnanimity, pafTecl an a<5t which effected it's repeal, and every other extravagant and tyrai;nic:il imputation of treafon adopted in the preceding reign. This at, in" it a s recital, contains the li)!'owi-ng memorable defcription of the uncertain tenure by which the fi,bjc6t could expect to preferve his life from minifte- ria! vengf-ance. It ftates, f Edward was again made the ftandard ot the crime. The treafons he mentions that were thus abrogated were clipping of money ; breaking prifon, or refcue ; burning houfes to extort money ; dealing of cattle by Wellhmen ; counterfeiting foreign coin; wilful poifoning ; execrations againft the King ; calling him opprobious names by public wri- ting; counterfeiting the fign manual or lignat ; re fu ling to ab- jure the Pope; deflowering or marrying without the royal licence any of the king's children, fitters, aunts, nephews, or^pieces; bare felicitation of the chaitity of the queen or princefs, or ad- vances made by themfelves ; marrying with the king, by a wo- man not a virgin, without previoufly difcovering to him fucli her unchafte life; judging or believing (maniteHed by any overt act) the king to have been lawfully married to Ar.ne of Cleve ; derogating from the King's royal ftile and tide ; impugning his fupremacy ; and alTembling riotoufly to the number of twelve, and not ciiij -';ng upon proclamation. The acl. f alfembling, therefore, and even riotoufly, is no longer a treafon. The meetings of the iorieties, to which fo much criminality has been endeavoured to be attached, can::ot fincethelaw of Mary be trealonable, when they are confidered abftra&edly as meetings or aiibciations. To cojiftitute them ats of treafon, it is furely neceifary to prove fome overt acl that evinces the comparing or meditating the death oi the Kinii. Comparing or imagining the King's death mult be p:oved to be the defign, from overt ats of fiicii meetings. As the terms tompaj/ing and imagining are held, in a le^al fend-, to be fyrsoni- mcjus by Matthew Hale,B!ack(tune, and other judicial au:hor ; ri-.'<;, and that the word compajs exprefsly figr.iBes the ptirpofe of the defign of the mind, or will, and not, as cn!y faicl, the carrying fuch delign into effel. For an erfect may be produced in which the will, has no concern. Such was t : ie cafe, as Hated by B'ackltone, of Sir William Tym-1, \vho, by the command of King William Rufus,- (hooting at u hart, the arrow glanced againft a tree, and killed ihe'King upon the fpot. Therefore this acciciental ftroke, which proved morrjl to thefoverti^n, per infortuntum, witluxit any traitorous intent, cannot be treafon. Nor can this cumpafling or imagi::ation, from it's being an adl ot the mind, be fubjccl to judicial cooni- zance, unlefs it be demonftrated by fume opai or wert *Qt^ Were [ * 1 Were fuch laws ever to be adopted, we might deem ourfelves under fuch a fyftem of oppreflion, as marked the tyranny of Dionyfms, who executed a fubjeft for merely dreaming that he killed him ; this was held afumcient proof of his having thought of the fame aft in his waking hours. But fuch not being the temper of the Knglifh law, an open or overt a You are aflembled under the authority of the King's Com- miflion, which has been iffued for the hearing and deter- mining of the offences of High Treafon, and Mifprifions of Treafon, againft the perfon and authority of the King. That which hath given occafion for this Commilfion is that which is declared by a late ftatute, namely, " That a traitorous *' and deteftable confpiracy has been formed for fubverting the " exifling laws and conftitution, and for introducing the fyftem ot " anarchy and confufion which has fo lately prevailed in France ;" u crime of that deep malignity which loudly calls upon the juitice ot the nation to interpole, " for the better prefervation of his " Majefty's facred perfon, and for fecuring the peace, and the " laws and liberties of this kingdom." The firft and effective ftep in this, as in the ordinary criminal proceedings, is, that a Grand Jury of the country mould make public inquifltion for the King, ihould diligently enquire, dif- cover, and bring forward to the view of the criminal magiftrate thofe offences which it is the obje6l of this Special Commillion t hear and to determine. You are Jurors for our Sovereign Lord the King; you are fo ftyled in every indictment which is prefented; but let the true nature of this fervice be underflood. The King commands you to enter upon this enquiry ; but the royal authority in this, as in all it's other functions, is exerted, and operates ultimately for the benefit of his people. It is the King's objedt, his duty, to vindicate his peace, his crown and dignity, becaufe his peace, his crown and dignity, are \hefubjcfts' protection, theirfecurity, and their kappincfs. it is ultimately for them that the laws have thrown extraor- dinary fences around the perfon and authority of the King, and that ail attempt* againil the one or the other are confidered as the highcft crimes wi.ich can be committed, and are punilhed with a feventy which nothing but the Salus Populi can juftify. The bufinefs of this day calls upon me (in order that you may the better underftand the fubjedt which is to come before yon) to open to you the natuie of that offence, which I have before fpoken of in general. An ancient flatutc, 25 Edward III. has declared and defined it. I fhall flate to you fo much of that declaration and definition as tppears to me to have any probable relation to the bufinefs of this day. By By that ftatuteit is declared to be High Treafon " to compars " or imagine the death of the King," provided fuch comparing and imagination be manifefted by fome aft or acts proved (by two witnefles) to have been done by the party accufed in profe- cution of that compalling and imagination ; that is, from the moment that this wicked imagination of the heart is acted upon, that any fteps are taken in any manner conducing to the bringing about and effecting the defign, the intention be- comes the crime, and the meafure of it is full. Thefe acts or fteps are technically denominated overt afts; and the forms of proceeding in cafes of this nature require that thefe overt acts Ihould be particularly fet forth in every indictment of treafon ; and, from the nature of them, they muft conftitute the principal head of enquiry for the Grand Jury. Thefe overt acts involve in them two diltinct confiderations : i ft, The matter of fact of which they confift ; in the next place, the relation of that fact to the defign. With refpect to the mere matter of fa ft, it will be for the Grand Jury to enquire into the true ftate of it, and I can have very little to offer to your confideration refpecting it ; and with refpect to the queftion, whether the fact has relation to the defign fo as to conftitute an overt act of this fpecies of treafon, which involves confiderations both of fact and of law, it is importable that any certain rule mould be laid down for your government : overt ads being, in their nature, all the pofilble means which may be ufed in the profecution of the end propoled, they can be no otherwife defined, and muft remain for ever infinitely various. Thus tar I can inform you, that occafions have unhappily but too frequently brought overt acts of this fpecies of treafon under confideration; in confequence of which we are f urn i (bed with judicial opinions upon many of them ; and we are alfo furnifhed with opinions drawn from thefe fources by fome of the wifeft and moft enlightened men of their time, whofe inte- grity has been always conlidered as the moft prominent feature of their character, and whofe doctrines do now form great land- marks, by which pofterity will be enabled to trace, with a grest