The Sun.
London, England, 1844-01-31 00:00:00

his acts should be attributed to the legal and innocent
motive, and not, by straining, to a criminal intent.
Gentlemen of the jury, you have a right to go further—.
according to the spirit of the British law if it be questione
able to what those motives are attributable—if there be
doubt upon your minds in judging of the transaction, the
parties accused are entitled to the benefit of such donbts,
and their acts are to be attributable to honest and just motives,
and not to criminal design. Now, gentlemen of the jury, you
have heard with great force of expression, and great power of
argument, an observation made to you already on the nature
of this proceeding. It has been already characterised a
" monster indictment" unprecedented in the annals of English
justice or English injustice. No precedent can be found in the
records of the law of England for such a proceeding as this,
charging almost traitorous intentions against the parties—mix-
ing them up in the transactions of nine months of their lives—
fi zing the acts of one upon the others—making each responsible for
the acts of the whole, and combining thase charges i 9 a volume
of overt acts—accusations which I say are unequalled in the
history of the law. How is an individual to be competent to
prepare himself for his defence against such multiplied accusa-
tions—for though they all tend to one, or two, or three charges
of conspiracy, yet all the overt acts stated in this indictment
are charged as illegal acts to sustain the ultimate charge of
conspiracy with a criminal intention of assailing the State and
Con title ion ? Of the injustice of such a course of proceeding
as in the present case has been adopted, you have heard.
You have been told that no precedent can be found for such
a prosecution as the present. Gentlemen, there is but one
case on record which bears any analogy to it, and that case
is one which is a blot on English history, and one which
has challenged the indignant animadversion of all intelligent
men who have ever considered it—the case of Warren Hast-
ings. When, on occasion of Hardy's trial, Mr. Erskine, the
eloquent advocate of the accused, came to speak of the in-
dictment in that case (which falls fifty degrees short of the
perplexity and injustice of the indictment on which the present
traversers have been given in charge) he expressed himself in
language of no common force. Lord Erskine, in page 890, of
the " State Trials," expressed his sentiments upon such pro-
secutions as the present in no ordinary language. He began
by quoting the sentiments of Lord Hale upon constructive trea-
son, which are as follow ;—" And third, how dangerous it is
by construction and analogy to make treasons where the letter
of the law has not done it, for such a method admits of no
limits or bounds, but runs as far and as wide as the wit and
invention of the accusers and the detestation of persons ac-
cused will carry men." " Surely (continued Mr. Erskine) the
admonition of this resplendent lawyer ought to sink deep into
the heart of every judge and every juryman who is called to
administer justice under this statute ; above all, in the times,
and under the peculiar circumstances, which assemble us in
this place. Honourable men, feeling as they ought for the
safety of Government and the tranquillity of the country, and
naturally indignant against those who are supposed to have
brought them into peril, ought, for that very cause, to proceed
'with mo-e abundant caution; but they should not be sur-
prised by their resentments or their fears. They
ought to advance in the judgments they form by slow
and trembling steps—they ought even to fall back and look at
everything again, lest a false light should deceive them.
admitting no fact but on the foundation of clear ant
precise evidence, and deciding on no intention that does not
result with equal clearness from the fact. This is the universal
demand of justice in every case—how much more especially,
then, in this, when the judgment is every moment in danger
of being swept away into the fathomless abyss of a thousand
volumes, where there is no anchorage for the understanding,
where no reach of thought can look round in order to compare
their points—nor can any memory be capacious enough to retain
even the imperfect relation that can be collected from them.
Gentlemen, my mind is the more deply affected with this con-
sideration by a very recent example in that monstrous pheno-
menon which, under the name of a trial, has driven me out of
Westminster Hall for a large portion of my professional life.
No man is less disposed than I am to speak lightly, of
great State prosecutions, which bind to their duty
those who have no other superiors, nor any other control, least
of all am I capable of even glancing a censure against those
who have led to or conducted the impeachment, because I
respect and love many of them, and know them to be amongst
the best and wisest in the nation. I know them indeed so
well as to be persuaded that, could they have foreseen the vast
field that was to open, and the length of time it was to occupy,
they never would have engaged in it—for I defy any man,
not enlightened by the divine Spirit, to say with the pre-
cision and certainty of an English Judge decidingupon evidence
before him, that Mr. Hastings is guilty or not guilty ; for who
knows what is before him or what is not? Many have car-
ried what they knew to their graves, and the living have
lived long enough to forget it. Indeed, I pray to God that
such another proceeding may never exist. in England, because
I consider it a dishonour to the Constitution, and that it brings,
by its example, insecurity into the administration of justice.
Every man in civilised society has a right to hold his life, liberty,
and reputation under plain laws, that can be well under-
stood, and is entitled to have some limited specific part of hls
conduct compared and examined by their standard ; but he
ought not fur seven years, no, nor for seven days, to stand as a
criminal before the highest tribunal until judgment is bewildered
and confounded, to come at last, perhaps, to defend himself,
broken down by fatigue, and dispirited with anxiety." Such was
the language of the acute and impasioned Erskine in comparing
the proceedings in Hardy's case with the proceedings which had
been instituted against Warren Hastings, and yet I have no hesi-
tation in avei ring that in Hardy's case the parties charged were
few, and the circumstances were few, as compared with the num-
ber of the accused, and the abundance of the accusations in the
present unprecedented prosecution. How monstrous is the injus-
tice to which my client has been made a victim in being called
upon to become responsible for the words and actions of other
men, beside himself, during the period of seven months. Gen-
tlemen, the task is indeed arduous which the Crown has im-
posed upon you. You are called upon to jump at the conclu•
sum, but everything that my client did in his capacity of paid
officer to the Society, he has done, not in the conscientious dis-
charge of his duties as a paid servant, but with a criminal intent
pervert the laws and injure the Constitution of the country.
That you are sworn to try : at that conclusion you are required
to arrive. Gentlemen, I feel embarrassed in addressing
you ; I confess that I am adverse to going over the
same ground that Mr. Moore has traversed in his eloquent
remarks, for I am apprehensive that a repetition of the same
topics liy me, instead of being of value to you, or to any
client, would rather have the effect of weakening the im-
pression that must have been produced upon your minds
by the admirable speech of my Learned Friend. But I can
not avoid offering a few remarks to which I would fain at-
tract your most serious attention, in reference to the particular
case of my client, Mr. Ray. Gentlemen, look at the position
in which my client is placed, and have regard to the circum-
stances by which his particular case is characterised. Gentle-
men, Mr. Ray is a humble man with a large family, who
look to him alone for support. •He has no other pursuits than
those which are connected with his avocation or office. He
was made Secretary to the Repeal Association on its forma-
tion in the year 1840, and from the day of his appointment
to the present hour his time and attention have been totally
engaged by the discharge of the duties incidental to his situa-
tion. He has not given me the slightest instructions to say
that the repeal movement did not enlist his good wishes in its
favour—or that he did not, to the fullest extent, sympathise
with the leaders of the agitation—but what he did he did in
the discharge of the duties connected with his official character
—what he did he did in compensation for his salary, as in duty
hound—and yet, gentlemen, you are called upon to view him
in the light of a conspirator, and you are told to attribute
every act of his—which he has performed in requital for
his emoluments—as an act p!anned and achieved with the
design of subverting the law and the Constitution. If the
Association were an illegal society, and if it had been cha-
racterised as such by the Crown, then indeed my client
might fairly have been made responsible for all his actions in
the capacity of secretary ; but no such doctrine as this has been
ever propounded—nobody has presumed to say that the Assos
elation is illegal—nobody could say that it is illegal. You find
my client, Mr. Ray, on principle, no doubt, a Repealer, and
incidentally a member of the Association ; but you also have
distinct evideuce to show that he is the paid officer of a per-
fectly legal association—such is the character in which he truly
appears before you. You find him discharging the routine du-
ties of his office, and yet you are called upon to say that his
acts are not to be attributed to the discharge of his duties—
are not to be viewed as the deeds of a paid servant who is
anxious to give value for his salary ; but that they are rather to
be attributed to a fell purpose existing in his mind to outrage
the laws and trample on the Constitution ! You are called
upon by the Crown to view his case in this artificial light.
You are called upon to come to this conclusion ; but as honest
men—as intelligent men—as men who love justice, and prize
the independence of the mind-1 ask you, can you come to
that conclusion ? In my humble judgment, it was a mon-
strous thing to include Mr. Ray in this indictment. He ought
never to have been included in the present charge; and I
cannot forbear from expressing it as my opinion that the
Crown, in having proceeded against him, have not pursued
a candid, ingenuous course, either towards him or towards
the other traversers. They have indicted the members of a
certain society for a criminal conspiracy, and they have included
in the indictment Mr. Ray, the salaried servant of the Asso-
ciation. I will not apply hard names to this proceeding, I will
not go so far as to say that they were guilty of a dishonest
intention, or that they could be capable of the common,
paltry, pettifogging manoeuvre, of cutting the ground from
the feet of the accused parties, by including the witnesses in
the indictment. Ido not mean to impute any unworthy mo-
tive to my friend the Attorney-General, but I am surely at
liberty to call your attention to the disastrous effect which re-
sults to the rest of the traversers from the circumstance of
my client being included in the indictment. While I repu-
diate the idea of attributing an unworthy motive in any
quarter, I am surely at liberty to demonstrate how the
effeet of such a proceeding as has been adopted is exactly
similar to that which would have resulted if the paltry ma-
nceuvre to which 1 have alluded had indeed been deliberately
had recourse to. By including Mr. Ray in the indictment,
they have deprived the other traversers of the benefit of
his services. Ile was the acknowledged officer of the
Society—he had in his possession the authenticated books and
documents of the Society, written in his own hand-writing—
he knew the working and machinery, so to speak, of the
Society, and was the only man competent in law to prove the
honest and perfectly legal intentions of its members. He could
have proved their objects—he could have clearly demonstrated
the means that were resorted to by them for the constitutional
purpose of procuring the repeal of a statute which they conscien-
tiously believed was a grievance to their country—all this he
could have made as clear as sun-light ; but he (the man who
was in a position to prove all this) has been silenced, and is
incapacitated from acting as a witness by being included in the
indictment. The Crown might have brought Mr. Ray
upon the table—they might have called for his books, and
examined the man who made the entries, and thus have
furnished themselves with primary evidence of the most au-
thentic character, but this they had not done, and they were
accordingly obliged to avail themselves of the ordinary news-
paper reports, which did not publish all the transactions of the
meetings, but only such as appeared at the time of public in-
terest. They thus were obliged to resort to a species of se-
condary evidence, and in order to make out evidence ad-
missible they were obliged to have recourse to the left-
handed management of including in the indictment the editors
of the different newspapers in which these reports were pub-
lished. What was the course taken at the trial of Hardy and
of Horne Tooke ? Who was the Attorney-General of Eng-
land in that slay ? The late Lord Eldon, then Mr. Scott.
Who was the Solicitor General of that day ? The late Lord
Reilesdale, subsequently Lord Chancellor of Ireland, then Mr.
Mitford. How did they proceed against Horne Tooke and the
ether members of those associations which it was the object of
those prosecutions to put down? Who was the first witness
examined against Herne Tooke ? Daniel Adams, who was
sworn and examined by the counsel for the Crown. And what
did he prove ? That he was the secretary of this society or
association—that he had held that office for ten years—that he
had made the entries in the books. But the Crown may say
to use here—" Oh ! do you expect we should call a co-conspi-
rator? do you expect that we should give to your counsel the
benefit of his cross-examination ?" Gentlemen, I bold it to
be a principle—a high, a noble, and inherent principle—
,of a Crown prosecution, and more particularly of a
State prosecution, I hold it to be the duty of those who
manage it not to discriminate, to judge, to calculate, to
criticise in what way the evidence may be likely to affect those
who are to be prosecuted ; but it is the duty of the Crown to
call all those witiiesses who can depose to facts appertaining to
the prosecution, and then to give the traversers the benefit of
their cross-examination. Mr. Ray is included in this indict-
I ment ; he cannot be a witness at all. I cannot cal! him for
himself—the other traversers cannot examine him on their be-
half. In Hardy's case the Crown did not indict the secretary ;
he was the first witness to 'prove the objects, the intent, and
the tendency of the association. Horne Tooke was entitled to