The Sun.
London, England, 1840-01-13 00:00:00

commit faults, the faults of the third parties,
Marc reelected back upon the prisoner, and this, it is
s,ald. because he was one of the leaders. Why, then,
*as Stockdale tailed? It was only that a beginning and
an ending might be given to this case ; for, whether he
had Committed one crime or another, it was but n aural
that he should run away; and it was to prove his capture
merely that Stockdale was produced. Even a part of the
Bench sisoubted whether or not he could be called, and he
teat tailed merely to tonnoot the one part of the ease
pith the others and to render the prisoner responsible for
that *hitt was stated and done *bee he *as not present.
There is no subject involved In greater difficulty than the
definition of high treason. From the earliest periods of
our istsry it will be found that constant eorttests were
*going on between our treat lords and our Kings—it was,
to punish the resistance of the former to the latter, that
the laws of high treason were passed. But to compare the
struggles of kings and lords in former times, and to asse
miiate them to anything that happens at this period
of time, as a conflict between the Queen and her
people, is what surprises me, and must create in the intel.
lectual world nothing but astonishment. The charge against
the prisoners is that of levying war against the Queen in
her realm, We are surprised that at this time a charge should
be made against men of waging war against the Queen,
when none arc found to disapprove of a Government car-
ried on by Queen, Lords, and Commons. While intelli-
gence is diffused, and property distributed as it is in this
country, it is impossible that a mob could effect any such
eurpose, and it is impossible that they ever can. I think
it is impossible for the Crown to show that the prisoner,
with others, intended any thing of the kind. But then, is it
a waging of war to find a few wretched men assembled toge-
ther—one, two, three, or five thousand altogether, still a
number meeting together, with such miserable weapons as
you have seen produced here, to make a display of—and no
doubt you have seen all that could be collected to-
gether, and all that the mob had gathered—are you
to believe from this that they, according to the statute
of Edward the Third, are guilty of high treason ? Such
classes of persons were never intended to be punished as
traitsrs. The crime of high treason was intended against
other leaders, these who would bring armed forces for the
purpose of encountering the King and his troops. We
knew that on William the Conqueror coming to this coun-
try, he portioned it out into narrow departments; he put
his own Barons in some places, in others he permitted the
ancient Chiefs to remain ; but one condition of holding
their property was swearing allegiance to him, and of
providing armed men, who might either be at his service
upon going abroad, or to aid him at home. These persons.
in process of time, became sorts of kings themselves; thus
you find the Ea 'l of Hereford and the Archbishops brought
their forces to unite, and to come against the King, and
demand of the King that which they wanted. Laws were
then passed by the King, against acts of this description.
Judges were, too, at these times the creatures of the
Crown, and they construed those laws in favour of the
Crown ; they gave to them a meaning which they were not
intended to have. Other risings then took place for the
repeal of those Acts, and they effected it after much blood-
shed. The reason why Kings were- so anxious to have
the doctrine of treason extended was this—that by treason
property was forfeited to the Crown. sings; in those
times. were grasping at the revenues of their etthjeett, And
the crime of high treason *as then t9Ught to be established
against those having large properties. The nobles dis-
liked this, an; therefore they sought to have the law of
treeenn defined, and for it not to be left to the various con-
struction of the judges. In the 25th year, then, of the
reign of Edward the Third, they succeeded itt getting
this law, to which I hays now to call your particular atten-
tion. The set states, that it is one to ascertain " the
limits and claims of forfeitures from the crime of high
treason." At that time, for a servant to kill his master,
eas petty treason; and the property of the servant was
forfeited to the successor of his master. As it was high
treason so to kill, or compass the killing of the King, for..
feited the property of the traitor. One of the crimes
constituting high treason by this statute, is " the levying
of war against the King in his realm," What is the
levying of war against the King in his realm? I contend
for it, that that is not the crime which has been corns
mitted in this ease. I beg now, gentlemen, your atten-
tion to the words at the end of this statute—" that
in a Case of supposed treason, which is not above
specified, the Judges should tarry until the case be shown
before btit lord the King in Parliament," Nothing
yokl see can be clearer than the words of the Act. It
specifies what should be the crime of high treason at that
period, and it then declares, that if a new case of treason
shall arise the judges shall not determine it, but that it be
brought into Parliament. It Is for Parliament to decide
or not, whether It is the highest crime known, for it still
may tie 2 feleny, which may subject a man to the punish-
teenl of death. That Act is in full force to this day, for it '
is under that Act that the prisoner stands indicted. To
show how necessary it sets, I may mention that one man
MU hung for the crime of high treason because he said that
his child was the heir to the crown, the man being the
owner of an inn called " The Crown." In another case a I
man was executed as a traitor because the King, having
killed a buck of his, he was proved to have said that he
wished that his buck, horns and all, were in the belly of
him who counselled the King to kill his buck, and it being
shown that the King was his own counsellor, the
man was executed as a traitor I Such an opinion was
dissented front by one noble-minded Judge, who left his
place rather than give his assent to it. It is quite re-
freshtng to think that there were noble-minded judges
to be found dissenting from such doctrines, for at that
time the consequence of a man dissenting from the
opinions of the King was, that he was obliged to resign
his office as a Judge. Formerly the Judges were the
mere servants—the wretched and servile servants of the
They were not, like the present race of Judges,
made independent of the Crown—a change for which we
are all indebted to the late king, George the Third.
The Attorney-General—They were made independent
long before the reign of George the Third ; they were
made so at the time of the Revolution.

Mr, Thomas—l defy my Hon. Friend the Attorney-
General to show that this was done by William the Third.
Chief Justice Tindal—All that George the Third did
was to declare that the Judges should continue notwith.
standing the demise of the Crown.
Mr. Thomas continued by saying, that as to the period
he was probably wrong, but he recollected that his Ma-
jesty George the Third had made a most voluntary and
gracious concession on the subject. The Judges then
were independent from the time of the •• Glorious Revo-
lution," as it was called, though it was curious, on a trial
like this, to say that a revolution was •• glorious." What
he contended for was, that they should not take the con-
struction of Judges upon an Act of Parliament, at a time
when those Judges were nothing better than slaves of the
Crown. No lapse of time could be a bar against that
which was law or justice. Chief Justice Vaughan, in a
case as to the process of justice in Wales, laid it down
that precedent might be useful when practice was to be
attended to; but when an Act of Parliament had been
violated, it would be monstrous to quote precedent for its
violation. At the request of one of the Jury, Mr. Thomas
read the authority a second time. Sir Edward Coke,
too, having been reproached in Parliament for what he
had done as Chief Justice, acknowledged that he had
been deceived—his guide being precedent ; but now
that he had swerved from it, he was guided better,
as he was regulated by Act of Parliament. So
it was in this ease. No doubt the man who said this was
a very bad man—he was one too who, as Attorney-
General, had called, as it was done here, the prisoner
at the bar a miserable miscreant. He would call upon
them to listen to the argument of the Attorney-Ge-
neral in the caw of Stockdale v. Hansard, when the
Judges were attempting to accroach upon the privileges
of the House of Commons.

One of the Jurors begged Mr. Thomas would ex-
plain the meaning of the word " accroach."
Chief-Justice Tindal said the Court considered that
the arguments were addressed to them, although pur-
porting
to ba addressed to the Jury.
Mr. Thomas thooght that the construction of the Act
was for the Jury. Acts of Parliament were intended
for the understanding of the pople.
Chief Justice Tindal observed, that if the Judges were
not to define for the Jury what was the law, they had no-
thing to do there.
The Attorney-General observed, that it was for the
Cour: to say what was the levying of war, for the Jury to
decide if the facts amounted to a levying of war.
Mr. Thomas said he was grateful to the Court for the
courtesy it had exhibited upon ail occasions to him. The
Learned Attorney-General, in a case that was argued
in the Queen's Bench on a question of privilege, con-
tended against the precedents which were brought against
the privilege, inasmuch as some Judges had formerly de-
cided in favour of their own privileges, and on the ground
that some of those Judges had b .en corupt and base. He
would quote the passages ; and in so doing, he request. d
the Jury to substitute for the word "privilege," wherever
it o..curred, the word " treason ;" and thy would find
that, if applicable to the former, it was infinitely more
applicable to the latter. The Attorney-General says, " The
law of privilege was settled when Judges were the crea-
tures of the Crown, and liable to be discharged if they
were not obedient ; and when Kings themselves used to in
terfere in the administration of justice, which they did
Personally ; and as Jud.res, in ancient times ; and after-
wards by letters to the Judges, directing them how to act
in particular cases-3 practice which several statutes had
he" especially framed lo restrain ;" and then the learned
Attorney-General ventured on our admonition, which I in
my humbler capacity would not dire to venture on ; "and
though the Judges are now independent of the Crown,
there may still he a proper constitutional j-alousy ; lest at
against
of
some time a desire of popularity, or of excluding the ju-
risdiction theCaohudrtsh,seful
fp
the learned rivilethemshouldlesdges.,n
to
He applied
i ctin
wholesome
to them the observations o
w
Attorney-
General in a question of privilege
of the legislature alone, and all claimed by one branch
he no
hands of their Lordships and the Jury,
jea-
lousy claimed at the
was the same with respect to decisions by aofth constructionand
interpretation had been put on the words
General
Ge statute—an
act of the whole legislature, as the Attorney_
claim-
ed with regard to the decisions affectinghe privileges tit
alleged privilege/. of one branch of the legislatur
under such circumstances, and with such authority, andhe
felt that be had a right to comment on the Judges, d
whose directions the law arose. Amongst authorities that
had been and would be referred to, was " Coke's Insttt
tutes," a volume published after the death of Lord Coke,
and without his authority, because it had not received the
last corrections of his hand, and therefore could not in all
cases be implicitly relied on by the learned Judges on the
Bench. In that Institute several cases were mentioned of
insurrections which, in consequence of the clause in the act
of Edward 111., restricting the Judges from construing
any new acts not mentioned in the statute as treason, could
not be punished as treason ; and it appeared that in con-
sequence several statutes were subsequently passed, ex-
tending the construction of treason so as to embrace those
acts which the statute of Edward 111. did not recognise.
He did not stand there to contend that these men were
not guilty of a very grievous offence, an offence for which
the law had provided, and for which they could and might
be punished, but he did stand before them t• contend that
the prisoner at the bar ought not to have been indicted for
high treason—that the crime proved against him did not,
by the express terms of the act under which he was in. I