The Sun. — London, England, 1803-02-10 00:00:00

'tl, a Y. 'it !r— -id rt iL le Y u. II i .oentleman at. the Bar. You will easily eon. teive it one of the most painful duties that can pos. sibly be cast on a man standing in my situation : for ; however unfavourable the case laid. before you may appear, yet when it is rectilletied that it is my proiince to bring fortvArd its mote , prominent fea tures, argue them iii - the most favourable . point of vie*, and draw thOseinfete n ce c f rom them which shall induee yo u ' t o acquit him . a a charge that reaches his' life, charaeler, and honour, every thing most dear to him, , ettery thing that- can tilted him in this world and in the world to come you must be sensible r have need of all that interest and -attert tion,' on your parts, which n subject of so serious and iMportant a nature demands: If I did not feel that I was addressing you in a Court of Justice, where I haVe all rhoie advantages which the ArroA !UV-GENERAL has enumerated, if I was not sensible I am assisted by:thelearned and noble judge, who. is, by the Constitution of the Country, equally with myself the Counsel for the Prisoner ; if I was not ap. Pealing ttea Jury who knew that the law of which they are the guardians, is to be administered in Incr. - , cy, I should be incapable of performinglhe artiu.' eel task imposed on me. The Learned AiTORNEY , G ingtßAL has with' great propriety stated, it is a Illheiple: in the administration of justice, that the greater the crime is, the 'greater should be the cautio n of the Jury in weighing the evidence be. fore they deliver the person accused to that yen. leance of the law which awaits him in case they Vinmunee him guilty. It is no new principle. It is applicable to e v ery case of' enor m ity, a nd has been tecognized by the ablest Judges and Vr itees• If it is true with regard to cases which Only ;Zeta the Public in a mural point of view, l'ow much more so must it be in those in which as teptesentatives of the Public are Prosecu. ? it is the peculiar misfortune of a person whO is tried fur .High Treason, that you cannot be in. tlifrerent to the charge against him. The offence is otle which directly attacks Society itself, and those laws to which you look up for protedion. If it is Necessary, therefore, you should guard yourselves agains t that indignation which induces you to at. t acit guilt to persons accused of lesser offences, how touch more oug h t you to ad with circurnspedion its a case of High Treason, in which you cannot avoid f eel i ng an interest in delivering over the per.. sea to who m it is imputed, to that punishment a crime of such deep malignity merits ? The Learned Artol.NeS.- N It A 1, stated sonic of the advantages a prihnner has when put on his trial for High Trea t"ni aid he mention... 3 this as'. one .of the cases : I 11 'glIlY approved his observation. lie said, those who planned the scheme of 'Liberty the people of this country have enjoyed since the glorious Revo juli°o, 'Wm sensible :that where the State was the Prosecutor, and sent into a Court of Justice the whole weight of legal talent against the accused, that it was necessary 'the Prisoners should have a greater clegree of allowance and indulgence than if charged with a crime of -lesser niiignitude. This indulgence' is certainly one of -the most beautiful Patti 'cif the Constitution.' • There is nothing skews the existbnce of .that troe Liberty, we enjoy . Country, so , much as the fair. mode of administering Justice with regard to the trial of piesunied Trai. tori ; it presents 'the'tnoit amiable iiiffitre Of impar.: tial jurisprudence. One which, if duly Alontem.. Plated, will teach those, if • any :there Are, whO are hostile to. our Gov,upplent and Constitution, tblc hat if there is any.country on the face of the habita. world, Libe,tty fluuri4hes,, it is in this. 4 is. thelitly,„guunt9 in which those auto are charged with An attempt, to overturn the Govern. itnd- ,whittevir is dear and ealtiable, have time least chance of a fair triai. • For. no Oilier crime, even though it should embrace every species: of 4tr °citY, does the Law Allow a 'similar indulgence to a Prisoner. If the Gentleman at the Bar was accused of the foulest Murder, I should pot, - as his Counsel, have the liberty of addiessing you - . I make these observationsjor the pnipoie-of skewing you that titbit whb faititied • the LaWs 'with regard to trials fot'High Treason. , were convinced how neces. larfthef Were to Sieure:theSubjeit from that pre. judiec, whiquuch au accusation is likelyto excite. } Lyin mitele g .these observations, I ant persuaded it Will be tinntcegory fi>r me to - desire 'you to` do all you can to., divest yourselves of that prejudice You may be disposed' to feel, 'anti to 'do that which the laws of your country :demand of you, and with °t.it which there .Ca 'be tip liberty in the country. ratan to presuauellte..Prisoner innocent until hi, is clearly 'made out—still 'it is made out, not that species' of e'videne.e you have heard to. c l a y, bat by legal and Line proof. Permit me, to call c",leattention to some f ew rules of evidence which ave been wisely adapted to CASes(lf this sort; some • bf liell) areapplicable to cases in general, that come : that they Will'fhave the . *anction a the Learned Judges whatem rOc, I ant.. Persuaded. I would not-state them if I did not think so. I omitted to observe that atilt is almost a question of fakte, .ands God:forhid I should say, if the AEU alledged arc clearly made out, they..do not Amount to. High Treason. The only question for the consideration of' the Court 'and Jury will 'be, 'whether •_ the different faks are made out by clear t h4:4 stisfaCtory evidence ; and whether the Treason h ' a ' been manifested by the hist evidence' that could' I. .rtivuiiiveiecohl4f.eilet4n;;;°O..gb‘lvt/21';iiintceorfd.has everlbent hliparrtoe:voaeridlt; do'frte 'i‘vinlieddreetil'licasctt?bin:'e; that Treason cannot be made:our by words; it must 14,e. by "lts, - deeds, or . •t% ritings. is the principle 41 earitient law, and . by the statute of 36 Geo. 111.. O n which this indictment is framed, the Treason most beity Writinircir'rinting. Thus you see that `. hat is alledged ,to be rteason, is not to be made out by thvniere• declarations o f t he . p ar ty accuse d. _ d o not mean, .sey,„tbat the parol testimony of Witn etiscs is., not.; to:.. be received, rbut only that a ,mart i 5 nut to be convicted of High Treason concurrent 'Proof by ' writin g . .or deeds. But it may be said, why does. .Ihe -.law allow to be 'received; if it cannot be: the' founda lion of a conviction ? I will jell;iou why. s;-It a lluws' it to be rtweivesi.to explain ttansadions,Wlitch 3 , n iheinstiv6, would he otherwise inexplicable.— g t- am about to. ad vert to a book whichl am aware l r elott-tctiocauthority .EnglislvCourt '.',P l s.ticse. 4 not, admit, an authority on . "'trick Jr.i/g : i4.l.vimil to ail, 14ut. it is an authority. 1 Whieit inhutt Lave weight, Wherever reran end justice ptesido. - The learned than who is the att. thor of it, bas.expressed my opinion infinitely bet. to than Lean express it by any, w ords ire my power to use. Monresrlueiu, in his Spirit of Laws, speaking of Treason; thus expresses himself, No. thing renders the crime of High Treason more ar bitrary, than declaring people guilty of it for indis_ Creet,spreches. Speech is so subjed to interpreta rion;' there is so great _a difference between in. disCretion and 'make, and frequently so little is there of the latter in the expressions used, that. the Law can hardly sullied people to a capital punishment for words, unless it expressly declares, what words .they are which render a man guilty.--7, Words do not constitute an Qvert.ad, they remain only in idea;, they ,generally, when considered by themselves, have no determinate signification; for this depends owthe tone in which they are ut. tered, koften happens, that in repeating the same words, they Kaye not the same meaning. ' This meaning depends on, their connection with other things, and sometimes more is expressed by silence than ,by any discourse whatsoever. As there can be nothing so equivocal 'and ambiguous as all this, how is it possible to culvert it into a crime of High Treason ? Wherever this Law is established, there is an end, not only of liberty, but even of its very shadow." It is impossible that the ideas of any Eng. lish Lawyer could be more clearly or better e xpress. ed. If a man was to be accused of going to a public market, to excite. the people, to revolt, five hundred people might be brought to prove that he did such and such particular ads, or fie might bring the same number to prove he did not do them ; hut what would he du if he was brought to trial for those ads, which he could have no opportunity of contradiding, for what passed in a • private room in the midst of persons of a description so, infamous as those who have been produced .upon the present Occa sion ? Do not tell me that the Law, as defined, admits of constructive Treason, when the Law says you can only.convid - on Overt.ads„ I am aware that going to a traitorous meeting is an Overt-aft, but with great submission to the ATTORNEY GENE... RAI., he is begging the question; for before he can say that attending, a - meting is Nigh Treason, he must shew the that it is atreasonable meeting. Something else than the ba r e meeting must be added to shew me that it is an Overt-act of f-ligh Treason. -You have no legitimate proof that any meeting• Co. lone! Despard ever attended was a meeting for trai. torbus purpoies.. There is writing in this case Tad. wit. I could explain that writing if I was called upon to do so, but I am not driven to the necessity of takingpotice of it. I do nut care whether that writing is treasonable or not, for it is no-ways ,connefted with the Prisoner, except by the evidence of William Francis. There is not an atom of evi_ deuce besides Isis, to affett the Gentleman who stands . at the l ' i l - heo e n t l i s; lg evidence ; against him is, that e attended o , e i ne namely, that meeting at which he was apprehended ' • for as to his at tendance at any o t h er , i t i s proved by witnesses, whose testi ,mony I will undertake to convince you, if it can'be for a moment believed, there is not a man whose fame, fortune, or life, can be safe. L'et us contrast this case with those whi c h ha ve occurred before, and see whether it is not materially different from them. 16 - the case of Christopher Layer, what was the evi dence ? Did the Counsel for the Crown 'edntent themselves with calling 'evidence to prove that the Prisoper attended meetings ? No : they proVed that arms were found, and they proved a plan, in his own hand-writing, to overturn the Government of die Country. In all theother cases, I ventene to appeal: with eanfidence to any one who hears use, whether, in any ,that have occurred sibce the ke.volution, for I AU never admit that a' precedent' is to be drawn friim what passed before, at a - period when Judges were objefts of suspicion, and not as-they are now, objeds of admiration, and as eminent for their in dependence as their learning." From the period of the RevolutiOn, then, I ask, whether a single solitary • instance can be found in which a man has been con: viCted of High Treason by merely strewing hini to, have attended a meeting, without, at the same time, proving :lets indicating that crime. I do not Mean to'say that any thing is necessary to 'redone towards the immediate accomplishment ' of the TN:atoll,' but a Jury ought to require it to be shewn that the accused at !cast had the Means of carrying the design into execution. 1 can conceive a ease in which Treason would be complete, though it was only its preparation. That case is where a Treason was meditated, which it required time to ; ripen, and where the moment of adion was at a distance. Ac. Costcling'fo the evidence, this was 'not that inchorate species of Treason ; but, from the account given by the witnesses, it appears' the Treason was 'not. only conceived, but at the moment of being carried into • execution, and though witness after witness has been called, no one has pointed - out where there were any arms, ammunition, or the, means of its being at tended with any probability of. success. Though the object was the taking the Tower of LondOn, the first fortress' in point of strength in the kingdom,. and from which you.ate told the Prisoner' said he could batter the town to atoms, yet you do not find that he had a single instrument ready to died this design, save a few tobacco.pipes, or that the whole exchequer of the Conspirators amounted to more than Iv. d. If such a Conspiracy had ever been proved by people of a description different from those whose evidence you have heard, woald'you not say, the story was too improbable to be en titled 'to belief'?' You have noise of the writings brought hOrne to Colonel Despard ;. but it may he said, 'he was so cautious a man, that he would take care their contents should not attach to him. Can the ATTORNEY GENERAL he permitted to say this ? Can he represent the Prisoner as a eaUtiOUS anti ineptl.den man at the same time I It is impossible that man should be 'described as cautious, who'is reoeat edly found, accordi n g to the testimony of the‘Wit nesses, talking to every stranger he meets, upon a subject which he could not but he aware, if deve loped, - must affect his life, I come now to a topic which is the most important of, anyone I have co .address you upon, and it is, that it is a rule of cvi. donee, not merely applicable4o High Treason, b 8& every' other crime, that the case should be made out by credible witnesses. It may be put to me—ii Do you' mean to say, that witnesses who are /W. conerlkes ought nut to be 'received'?" Certainly they aught. But I think I can state, the tine which constitutes the utmost extent to Which their evidenceis.entitled to credit.. The evldenee of an Accomplice is entitled to credit, where it captains . a transattiOn which has been proved by other Wit nesses. '' Why then," you wit! ask, "isitto be received at all, ifir can only confirm what,hai been before proved ?" It is, I say, to be :tedei veil' for the purpose of satisfying a Jury, wh6 . woutrnot, without it, be satisfieit in` returning verdiet": of guilty ; but the evidence of an Aez..ortiptiCe is' not to be received as 'nob( of a•case, which; Without it, is an innocent one: The humane laoguage of the Law of this Country is, that it is better oinety.trine.guilty'persoos should escape justice, than that one innocent man should suffer injustice.' The testimony of Accornplices, then, ought not to be received till after the crime has been made out by others. Let me ask you if one tittle of proof has been adduced in this . case, except by the evidence of Accomplices, or any one circumstance alledged against the Prisoner at the Bar; except- his being present at the Meeting at . the Oakley Arths 3 .If so, it is not the case of Colonel Despard I am pkading,' but of every individual. The principles upon which the Law and English Liberty are -founded, are those whickaffutd pro. tedinn against foul charges in courts of justice. It must be admitted, that only four of the Witnesses fro' the Crown, in the least degree, go to offal the Pr isoner •;- those four are, Windsor, Blades, Francis and Emblin, and I think I am entitled to say, that nut one of these persons have a right to the least degree of credit. I may be cold, that though each of theSe separately, could 'not bring home a case of guilt, yet, that altogether they prove one. I feel the full , force of what the SoLic trok GR RAL will say on this sulijett, in his reply. I admit, that if Witnesses Came from different parts, and all agree in the same story, they are to'a certain extent, entitled to belief; hut this observation, which has been constantly made,' does not apply to a case of Conspiracy ; fur where men attempt to fasten a ctitne on another for Conspiracy, they will, of course, do it by a story which shall be supported by a concurrence of testimony. Men ' otluated by such :in intention, will take care , t h at in. their narrative they shall exactly resemble each other. if the charge is foendedie a COnspiracy, it makes no difference, whether 'it is supported by an hundred witnesses td by a few. If 1 shety that the transaction is altogether infamous, and' that the . witnesses have conspired to charge Colonel 'Despard with that which belongs to themselves, it is your duty to acquit hint. come now to a ground which is decisive of the case; you have heard a tale which 'freezes one's blood with horror; it is alitiott impossible for any man to listen to such a story, without 'being deprived of thosel'aculties necessary to enable hint to extricate the Unfortunate Gentle. man at the bar from the labyrinth in which he has, by the wickedness of others, been entangled.-e- If this is an imptoble case, "it is your duty to're_ quire more cogent evidenee to substantiate it. That it is an improbabli Otte, to one who has heard the evidence can for a moment doubt. It appears that not more than fourteen persons were assembled at an alehouse, with no other weapons but tobacco. pipes, and that their objea was to overthrow a . Government supported by as many thilliotis. Had they any foreign connections ? No attempt has been made by the evidence to infer such a theory. At the moment this mighty.blow was' to struck, it appears, they were destitute of means, and ,expected no assistance. Resources were talked kif, to give. an air of credibility to. the de s ig n ; but if there .was any foundation for ' it in point 'of fad, how happens - it that we• have bad' no ;proof of a corresponding conspiracy in other parts of the eciuntry ? How was the platy to be, put in execution, with the enormous' sum, as I have already mentioned, of fifteen -shillings and eight. pence in the conspirators' treasury . ? With what arms ? not a pike, Or a gun, or a sword, or' any in. strument of ()Knee. The Tower wasp be taken ; the Mail Coaches stopped ; the King was to be at. ticked while surrnonded by his guards,' ten times more numerous •than all the eonipira tors.; the Batik. was to be invested ; the two Houses of,Parliament were to be tiiken possession of, "anci. all this by• four teen Men in buckram ! It has been supposed 'that CO. howl l)espard should haee said, " that if no one else would do the deed, his Single arm shOuld attempt this probable ? T tidal have dernonstrited so you,. that no scheme ever Was. mote improbable.: Are we rb be told, that a Government, testing on a foundation calculated to make it endure for ever, is likely ''to be destroYed by a conspiracy formed at a low alehouse ? The Whole etinipiraCy has been 'developed, and yet it has not been shewn that any 'man of the least poWer or consequence supported it. :If thii be so, are you to be contented with' the eVi.. dence of four men who are entirely unworthy of cre.• dit I You may ask me, do I menu to conten'! that no traitorous Conspiracy existed ?I admit that'; but the question is, whether the Prisoner at the Bar i's a Traitor t . I believe there werepeople who thought. it would' be a good thing' if they could sedUee the Army to their interest, but they had not got- the length of determining what they' should do with that Army after they had seduced it. The Attorney General has supposed, that it was contrition which made the witness, Windsor, disclose the Conspi racy to Mr. Bownas. I-rather think it was because he found his Treason impraCticable, and be was therefore the more infamous in endeavouring to 'seduce others. What credit can you give to a man who would seduce another into a situation of danger, in order to betray him ? It may be asked, , " if Treason existed, to whom does it be. long ?" I say, the nature of the Treason betrays its low origin. It has manifestly been hatched by those who were not capable of looking to distant objetts. You will ask, how a gentleman like Colonel Despard should be found in such low company 1 I am not afraid to encounter the question. It has so hap. pened, that, Colonel Despard, from the connection he formed about the year 1788, was suspected of being eacerned in a traitorous 'Conspiracy. 'He was confined duriog three years. 'When he was berated, be was . deprived of the rank he had held in the ArMy. It appeated, that there was no ground of aeonsa s tion 'against him, which could b e }step be: fore a Jury. I do not find fault with the' AEI of Liderimity, which ?rotated the Jaw frOno that might have been bionght against theta by 'WhO had been.bojtlitly they did -was according to the best ment for the benefit of the Country, and ltWaS pto:' per individual interest should give Way . , Thiii hay. ever, prevented Colonel Despatd front seeking that justice he had a tight to expeft. • The Learned Cothisel -proceeded to' idler the improbability of Col. 13espatti,' who was innocent of an imputed traitototts ozonipiracy at a time when he might have looked foi foreign assistance, being engaged in one when the country was traticidil, :add without enemies abroad. He then observed. upon the infamous charaeters of did Witnesses Blades', Windsor, Fratteis and Etitbliti, and particularly dwelt upon the atrocity of Francis, who came forward as a wi mess, not only against the Prisoner, but Iris own Brother. • It wag sible that midi a man as Colonel Despard should ha‘ie been guilty of an ad that contraditied rho whole tenor of his former life. The first Witness called for the Prisoner WM Lord Nelson , : he was examined by Mr. GURNRY; His Lordship said, he knew Colonel Despard ; *at it was 23 years ago since he saw him. He became acquainted with hitn in Jamaica, when he was Lien.i tent of the True Blues, when the French were ex. petted. '!'here, from his abilities as an Engineeti he was employed on very important service: The LORD CHI v Justtc e said, he was sorry to be obliged to interrupt his Lordship, but rho Court could not with propriety hear the story of this Gentleman's military tife ; but his Lordship, from his observation of what he saw, might give his opinion upon his charaeter. Lord Nelson said, that he and the Prisoner Were on the same spot together inJamaica in an Expedition, :and had shared together the fortune of war; had made up their bed together, and slept in their clotheS on the ground together, and had examined the Eneirty'S walls on all these occasions the Prisoner had con. dutted himself with a steady and - determined COOL rage, and no man could shew more zeal and attach. meat to his Sovereign and his Country. He cull eluded with stating, that from every thing be had seen of him, and from what he thought of him, he would say, that if he had not heard of him for the last twenty years, and was asked what he thought of him, he would say, " If he is alive, he is certainly one of the brightest ornaments of the British Army." Upon his cross.examination by the ATTORNiY.. GENERAL, his Lordship said, that he had not known any thing of the Prisoner since the •ear 1780 ; that he had heard of the. charges against ,him, but knew nothing of them, and that, inde. pendent of those charges, he had no reason to stts.. pett General Sir A. Clarke was then called ; he said, he-knew the Prisoner extremely well, th a t he was in the service when he (the Witness) was Governor of Jamaica, and that he was a' very serviceable Officer. lie stated some parts of the Prisoner's conduit when he proceeded to the Bay of Honduras, where he behavedwith singular propriety. In short, he always considered him 43 an intelligent, :good, loyal Subject, and a very brave, active Officer. On his cross-examination by the Soctc !Tom GfiNP.RAL, he. said, -he had known nothing of the Prisoner for the last .13 years. Sir E. Nepean said,. he had known the Prisciner ever since the year 174, and had always enter. tained a great resped for him until he was appre hended, in consequence of some suspicions that fell upon him. When the Prisoner Came from Jamaica, he was recommended to turn with such strong testi_ monials of merit in the service, that he became intimately acquainted with him, and frequehtly vited him to his table, and entertained the greatest opinion of him, believing him 'to he a. man of the most petted and honourable -charader, Juspiciortfellupon him, the grounds of which picion he was never acquainted with ; but for the • last .four or• five years, in consequence of these sus: picions, that intimacy had been discontinued.' On his cross-examination, by Mr. Serjeant Sett r. iiEED, he said, he had not known, or had any in.' tettourse with, theYeisoner, since he became -an object of suspicion ;: but the subjed of that suspicion he wis , totally unacquainted with. ,Serieant SHErliEliD asked the Witness whe t h er he oho,. believed the. Priioner to be a man of gond charaiter 1. fie. replied, that the -only reason he' had-for entertaining any doubt upon the subjeCt' was, that the .Prisoner.had• fallen under the - sup'. ciun of Government, and if he had not ben sus; petted, he should have thought him a man of good.' charider, Mr: Geo. Long svo then called, but did hit ar:: pea:: • . The Evidence for the Prisoner being closed, Mt. Gua NE Y rose to sum it up to the jury. He said, it would be unnecessary to enlarge upon the subie6l, as his Learned Friend who had preceded him, had so ably and so .eloquently discharged the arduous task. which, had been assigned to hini. He contended that the Overt.ads which had been laid, in-the indictment ought to be proved by two, credi.. ble witnesses,- but in this case, there was no evi. dence:of any Overt.ad manifesting an evil intention, independent of the evidence of the accomplices. It was true that accomplices had been examined in cases of Treason at ad times, and had been held to be nnt•only competent, but credible witnesses, front the nature 6f things, because Conspiracies could not be developed without such an examination ; but it had always been held That it was necessary that their evidence should be confirmed by other witnesses in some respects. At the Trials of the Persons whb were concerned 'in the Rebellion in 174 p and in . the atternpts made to resale the House of STUART, it was true that the accomplices were examined, but they were very different kind of men from those who were examined as accomplices in the pre. sent Case. They were men of good anti noble inte r t., tions, atting under a misguided judgment, their's waal a pure attachment to the person of him whotis they considered to be their lawful Prince, and therefor e , though they were - Rebels in the eye of the Law, yet they were men of moral good‘condatt, and entitled to credit. But the accomplices who had been ex. amined in the present case were men of a very dif. ferent complexion. The . Learned Counsel then commented upon the manifest improbability that a: man in such a situation in life us the Ptisonerohoulti engage in so desperate and so Ah_kurd a Proceeding as that which was imputed to bitn ; bat the ions