The Sun.
London, England, 1840-01-08 00:00:00

Imake construction greater than that left by the 25th Ed-
ward, cap. 3." Now, Gentlemen, hear the remarks of ray
Lord Hale :—" These resolutions being made and settled,
f we roust acquiesce in them ; but in my opinion if new cases
' happen for the future that have not an express resolution
in point, or are not expressly within the words of the 25th
of Edward 111., though they may seem to have a parity of
r reason, it is the safest way, and most agreeable to the
great Act of the 25th of Edward 111., first to consult the
\ Parliament and have their declaration, and to be very wary
in multiplying constructive and interpretative treasons, for
1 we know not where it will end." That, Gentlemen, is
not my language. I wish to God I could speak so em-
phatically. It is the language of one of the greatest
Judges that ever adorned the bench of the country, nearly
s two hundred years before the time at which I now speak.
1 He says, " In whatever is made nod settled we must ac-
i quiesce;" but he warns his successors, be warns juries, he
t warns the country, he warns the r eople, against ever coming
; to such decisions again, or going even one short point be-
yond the law, and "to be very wary in multiplying con-
! structive and interpretative treasons, for we know not
Iwhere it will end." And the words, Gentlemen, apply
1, emphatically to the case before you. If you magnify, if
) you extend, if you distort, if you exaggerate a riot, how-
t ever dangerous it may be in its tendency or mischievous in
' its consequences into high treason, how do you know hut
you yourselves may unhappily in a moment of excitement
—some of you probably entertain strong political opi- •
nions ; I know not how that may be, but one may be
easily drawn into acts which the law will not justify—.and
how do you know but you may, in a moment of heat or
excitement, give utterance to intemperate expressions
which may excite the passions of a multitude? And if
they break into open violence, instead of you being sub-
s jest to fine or imprisonment, or any punishment which the
law awards as proportionate to your offence, you may.
on the very precedent which you yourselves will
have laid down this day, stand indicted by an Attor-
I ney-General for high treason, and the lives of your
children: and children's 'children, their name, property,
character, and welfare, be placed in danger and in jeo-
pardy for ever. Gentlemen, remember the emphatic lan-
guage of Lord Hale, " We know not where it will end."
Be you not parties to carrying the law one hair's-breadth
beyond the limits where you find it. We see, Gcatle-
men, that in earlier times the great man was favoured be-
yond the humble and the helpless; not before the trial by
jury was known, but before it became the great shield of
the lives, liberty, and happiness of the people ; and this
ie important with regard to the levying of war, for I am
going to show you that disturbancos, marches of a much
more palpable, dangerous, and destructive character than
i anything that has been attempted to be proved here, have
yet not been held to be treason, or a levy mg of war against
the Sovereign. lam about to read what stands recorded
' with regard to a serious disturbance which took place
soon after the passing of the statute, in which there was
marching in military array, and yet it was not held to
be high treason. Lord Hale says--" In the Parliament
of 20th Edward 1., now printed in Mr. Riley, page 77,
it appears there arose a private quarrel between the Earls
of Gloucester and Hereford, two great Lords Marchers,
and divers of the Earl of -Gloucester's party, with his
iconsent r—' CUM multitudine, tam equitum quam pedi-
tum exicrunt de tena ipsius comitis de Morgannon, cum
vexillo de armis, ipsius comitis explicateiversus terram co-
mitis Heref de Brecknock, et ingressi fuerunt terram illam
per apatium duarum leucarum, et illam deprxdati fuerunt
et bona illa depraadata usque in tenam dicti comitis Gloces-
tron adduxerunt,' and killed many, and burnt houses, and
committed divers other outrages; and the like was done
by the Earl of Hereford and his party upon the Earl of
Gloucester's. They endeavoured to excuse themselves by
certain customs between the Lords Marchers. By the
judgment of the Lords in Parliament their Royal franchises.
were seized as forfeited during their lives, and they corn-
f mitted to prison till ransomed at the -King's pleasure."
I Although here was a war levied between these two Earls.
yet, inasmuch as it was upon a private quarrel between
them, it was a great riot and contempt, and no levying of
war against the King ; and so neither at common law, nor
within the statute of the 25th of Edward 111., if it had
been then made, was it high treason. Gentlemen, I pray
your attention to the expression, " That it was indeed
an offence to raise an army without the King's commis-
sion," because in the only part of my Learned Friend's
opening in which he professes to give a direct opinion to this
tumultuous assemblage he talks of superseding the au-
thority of the Crown—a very vague and indefinite expres-
Ision indeed, but in the times of Henry IV., as well as of
Edward 1., the authority of the Crown was actually sn-
1, persecied. In the latter reign we find the Earl of Nor-
thumberland raising a large and powerful army—marching
. it through the northern counties, and for which, having
been tried, he considered himself very leniently treated in
1
being only compelled to pay a fine. It appears by Weis-
ingham, sub antic. 1403, a great rebellion was raised
against Henry the Fourth by Henry Percy, son of the
Earl of Northumberland and others. The Earl gathered
a great force, and actually took part with neither, }tut
marched with his force, a; some thought, towards his son,
1 and as others thought towards the King—pro rediente
yrando pacis negotio. He was hindered in his march by
. the Earl of Westmoreland, and returned to his house at
Warkworth ; the King had the victory ; the Earl peti-
tioned the King; the whole fact was examined
Parliament.—Rot. Par!. 5 Hen. n. 12. exTamheK''nin
demanded the opinion of the Judges and his
I Counsel touching it. The Lords protest the judg-
-1 ment belongs in this case to them. The Lords, by
ii the King's command, take the business into examination,
• and upon the view of the Statute of 25th of Edward the
Third and the Statute of Liveries, " Adjugerent ge ceo,
que fiut fait par le counte, ,'eat pas treason, ne felony, mes
I trespass tantsolement pui quol trespass le dit counte deust
faire fine et ransom a volonte du Roy ;" but Henry 3, the
son, was attaint of treason. It appears not what the rea-
son cf that judgment was, whether they thought it only a
oompassieg• to levy war, and no war actually levied by him,
tbecause not actually joined with his son, or whether they
thought his intention was only to come to the King to
mediate peace, and not to levy a war, nor to do him
any bodily harm ; that it was indeed an offence in him
to saint an army without the King's commission, but
not to offence of high treason, because it did not appear
that he raised arms to oppose the King, but possibly
to assist him; but, whatever was the reason of it, it
I was a very mild and gentle judgment, fur the Earl was
d, rubtful of a more severe judgment; note, he returns
tha, eks to the Lords and Commons, de leer bone et entyre
goers a lei
num' tre, and thanks the King for his grace,
Gentle.
llen, I shall show you that here, in this very case,
? this riot ‘ vas nut so great as that in which the Earl of
Hereford w
out of a priea.
hate; 113 implicated, and that, although not arising
es quarrel, it was for so limited a purpose that
it cannot, wit'
a ba,:x overstraining of the law, be
pronounced hig:l4 trea.:on, or a levying of war. I know
I you will find it -to be a grievot:s offence, but you will not
be parties to ove,rstraining- that law which i 3 the safeguard
',
and the protection of the people, by pronoti'rcing this to be
1 a levying of war. There is another case, and, perhaps, a
I still more important one—" If men levy war to break
1 kat song, to deliver one or more particular persons out of
a, pr' sc 1 wherein they are lawfully imprisoned, unless such as
are in., masoned for treason, this, upon advice of the Judges
( „p„ a „-„teeeial verdict found at the Old Bailey, was ruled
nes. to be h igh treason, but only a great riot (1668) ; but
it. it were to
....-":1k prisons, or deliver pereous generally out
this is
.•reason."—Coke, P. C.. p. 9.
of on on,
It was the son who was pre-
The Foreman oft..i'''' Jury—
,t
the father.
seat on ehet occasion, ne
e gallant Hotspur, as he was Mr. Kelly—The sun, to
col!ed, was certainly aria=ed in
.arms against the most gal-
'
Leo. Monarch of the day, Henry te: 17;ftb, .then Prince 0!
Ntra!ers; hot what I was reading, Gentei'med„ eves done by
the-father, who raised in Northumberlaad a ri,iniz..rous and
pnwerful army, and marched through Northumberland end
r across the country, ae every one thought, to assist his son.
t There can be no deuht that this was a levying or war,
c.'though it was net high treason, and if he had joined his
,e? r and attacked the King's forces it would have been
T.,,,, treason. I only refer to it to show that the mere
"' ~..- e. of war, unless it be against the Sovereign, does
1,,, •••••* ,
1 tij , 'l4 11t to high treason. If the gentleman who was
I !"::,i'',:atto, Tit to suggest the question means that the son
.., •d • let the father, was in arm', the matter is nil,
*,,,,,,y, at, , , father v and
1 Nil.'"
d Ti
'4"hrewsur'yv as„
I
i.i let r
et the hwase, a d
:netof
byan the Earl of
to
~,
, mares.'' -He guided' and led the men on the march;
1t,5t..,,.. reran a . .
it co, istruction was put, as it must be put, upon
i'tut a lenh.
every act cou. net led with a charge of so grave a nature as
ta t the battle of Shrewsbury Hotspur was
high treason. - ", - the hand of the Prince of Wales ; but
I
present, and felt ••••• .
, t, fortunately, and stopped by the
he father. being ..\ came too late. His gallant son
Eld of W'''"wraimid' ,00h the Earl of Northumberland
had lost his life, and althz..' 10 or 12,000 men, he was not
had marched at the head al - .hv
ge9
try Because the Lords
)
held guilty of treason. Anti .ii '•• him, thought that
of P tate King's fces
arliament, who were the Jury ,
`ic might not have intended to aattackattackeese.t the King.
The Attorney-General—Possibly to -
toor .
( ,Mr. Kelly—Possibly to assist him. If , 'heee be a doubt,
# you. Gentlemen, deal as mercifully by
t
tea, Lords of Parliament did by the Earl of
'
be c
Northvi.sonerusnbers
a-
-1 lant:, he will go free from that bar. Here , los Hotspur,
'nes
• indanger
pee toed by a ;gallant and accomplished warm, r ,
•
.2
of toot life which he afterwards lost. His fath ti;,..
at tile head of 10,000 or 12.000 :nen. And tiae
.‘".6'sul-
' tire: for the Jury, the Lords of Parliament, w. se'„
t en
he a larch to assist the King or his son -
marsllied I,'
tlemerr, ean there be a doubt that he
isave hiet son's life, but came too late ? And when the
question Lame
. before the Jure they "decided it
'doubt about the intentions at a father fa-
-1
vourab l v,
although, I should have supposed, no an
have se it,
such a case.
I only refer to it to show that where there
is a doubt be a charge of treason, whether in the case, of a
peer or oeas.tert, the Lords in Parliament, or you, Ge.atle-
men, sitting in that box, are bound to put the best con-
lc
atruction, an.d, -;f you can raise a doubt, to give the pri-
sot er the benefit' of shat doubt. There is, Gentles-nee a
still later case---eme of comparatively modern times--to
I
:which I shall shortly !Intl your attention ; and it is not
um important to repeat litire
of ." intentjon," because I .
Frost became a party to the .that I was upon the questionPiz, Ye admitted to you that .Mr.
marching of armed inuiti-
tre dDle intent
could levying of war: The
tudes t,',rough the country, and
if a ason
he shown it might amount to . .
erase, Ge,ttle-men, to, which I am going to allude is the
, nobleman of grealti
c,,s, of saerd George Gordon, a young
pomer, ,rent talents, great influence, and
pow • ers of eloquence. He assembled no 1. I believe no, sma.
ess than _O,OOO
nd to made a
i :nen, in oi=ler to petition Parliament, i '
r 3 . in suy -
) strong demonstration by force and numl.
id Parlia-
si port of theie petition against an Act
1 ,rent which hat been some little time b 2fm.e passed
' for the relief of Roman Catholics, called , 3ir C'ecrc-.(e
s •I 'e Asr In that case 2,000 men marche
6 ayi e e L.
es ers,sc'e-fields down to the House of Cone
Gent. 'amen, as at Newport, at a distance frot no ron; St.
nnt..':.
1 the seat
of Gi, vernment, the Ministers, and the pro
but mare
when ter 'lied down to the House of Commons
lain resolutions relative to the repea.
George S, . 4,..
wilezer were debated in the Hous• liarnedt--
at a time
I of Sir
s. This
top ted, and directed, . encou-
, multitude, et liti .P • ana
~
• raged by L {ea- 'Gordo:., appeared at the 'louse
.1 filled
sesent tbc:r petition and almca
a Commons to 'Pr -
_„.,_,
divide,
test Wheirtne House was about to
the lobby; 50 - . 0, e'. ~. f •
aes r,-ng men,. o that time, they could
aceordlng .to ..e:e.: -4a-th in r'ra
e presence of these stra, -0! - •
• divide on ac- - Licted
her treason had been come
he qurstio isrqA. , , •••••••.,
vt
....,.