lity on the testimony that has been adduced, still, if you do not give entire credence to the evidence of Lawler, the prisoner, however in correct, or if you will criminal, if his crime falls short of high treason, you are bound to acquit. The specific treasons charged against him are, the compassing and imagining the death of the king, and adhering to the king's enemies. I shall not deny, that an adherence to the king's enemies is a substantive treason, and may be also laid as an overt act, which it unquestionably is, of conspiring and imagining the death of the king; but I, with respect for the Court, insist on it, that the barely having in one's possession without publication a paper containing favourable sentiments and wishes towards an enemy in a distant country, without any communication or correspondence whatsoever with the enemy; I say such a circumstance cannot, on any principle of law, of authority, or of precedent, that I know---I say such a circumstance cannot be swelled up to the enormity of high treason. I also contend, and I am supported by Hale and Foster, that a bare conspiracy to levy war for lawless purposes, short of deposing or dethroning the king, or in any degree endangering his sacred life, is not high treason, nor an overt act to manifest the compassing his death. Having said so much on the law of treason, so far as it could be supposed to bear on the present case, I shall have but little to add to the observations which have been so forcibly urged by Mr. M'Nally, on the evidence of Lawler, contaminated and damned as his credit must be, from his avowed perjuries, intended assassinations and felonies; so totally divested, as he has been proved to be, of that sense of religion, without which no man can regard the sanction of an oath--it would, I am confident, be a waste of time to the Court to argue that his testimony must be thrown out of your consideration. What then is to affect the prisoner's life? Is it the unpublished nonsense found on him? Now, gentlemen of the jury, as to the declaration, the words of it are, "I, A. B. of my own good will and consent, do swear that I will be true to his majesty king George the third, whilst I live under the same government."--Surely, gentlemen of the jury, "while I live under his government," may have been understood by the youth at the bar, to have meant the duration of his own life---there is no innuendo laid in the indictment to eke out a criminal construction of this declaration; there is nothing necessarily to be inferred from it in law, in logic, or in reason, to charge the prisoner with treason, or even with sedition. Gentlemen of the jury, as to the catechism, I own I cannot say so much, but as it was never published by the prisoner, he might, as judge Blackstone says, "keep poison in his closet," so that he did not vend or disperse it. This catechism may be considered as sedi tious; yet courts and juries should be cautious, how criminal interpretations should be given to words in themselves dubious. In Fleta it is laid down, that formerly in appeals for treason, the appellant was obliged to prove with the most critical accuracy and perspicuity, the words and writing imputed, their clear meaning and import, beyond doubt or question, and if he failed in doing so, the appellee was discharged and cleared of the imputed treason. ---But, gentlemen of the jury, I hold in my hand high authority to show--authority not expressly stating, but by fair and almost necessary implication admitting,--that even the administering unlawful oaths and engagements, is not considered to amount to high treason.--Defenders now are what Whiteboys formerly were, and the act of the 27th of the king, was needless and nugatory, if the crimes provided against by it amounted to treason; [here Mr. Lysaght read extracts from the acts alluded to, to support his argument; and contended, that by this statute he was impowered to assert that the king, lords and commons of Ireland allowed impliedly, that the statute of treasons could not legally operate against Defenderism.]--But the prosecutions of the present day, though for the same offences, were to vary from the prosecutions heretofore carried on against White-boys and Right-boys as they were then called, and Defenders as they are now called. Why? because a general alarm was spread through these kingdoms, and many good and wise men were infected with it.---How else account for the late prosecutions in England, the result of which was the acquittal of all accused, and the ascertaining that one of the supposed traitors, Horne Tooke,* was a gentleman of the soundest and most pure principles, of unshaken patriotism, and loyalty! as was manifested by the evidence. ---My lords, I ask what precedent can be adduced to support the position, that the having a paper of any kind in one's possession without publication, can be high treason? Hensey+ had sent forth his letter, it was intercepted, but it had gone from him with intent that it should reach the enemy.---Is there in the case before you, and on which give me leave to say posterity will comment, is there the shadow of evidence even from the infamous and solitary witness Lawler, that any communication or correspondence with the enemy was had or intended?---must not the intention be guilty?-Was Rabelais put to death for having-It is too solemn an occasion to throw out such allusions, if they be not relevant--was Rabelais put to death, even under a despotic government, for writing labels on phials full of brick dust, "poison for the king, poison for the queen, &c."? No, because no treasonable intention could be proved against him. And will the Court and * See his Trial, antè Vol. 25, p. 1. jury in this case say, without credible proof, that Eliphismatis, and such trash of enigmatical or rather nonsensical import---and certainly not credibly proved to be of treasonable import--is an overt act of adhering to the king's enemies?-Where are his enemies? where I hope they ever shall be, distant.How did the prisoner adhere?-Did he correspond with, did he send intelligence to?Does the very indictment charge that he adhered in any manner, except to use its language, in case the French should land.—I have heard of constructive treasons-here are eventual, contingent treasons-blundering accusation! Gentlemen of the jury, will you disgrace your country and yourselves? I hope not-I have for myself to lament, that I have been assigned as counsel for the prisoner but this day, in the place of that able advocate, Mr. Curran, who could not attend;-but I confide in the wisdom and integrity of the Court and Jury. Mr. Lysaght concluded by conjuring the Court not to put too heavy a weapon into the hands of justice, by multiplying treasons; and to the jury to reflect on the infamy of Lawler, and the youth of the prisoner.-Do not, gentlemen of the jury, suffer your consciences to be biassed by interest or by prejudice, or your judgment to be shaken by alarm. Do not superstitiously imagine, that the poor youth at the bar is so unhallowed and full of guilt, that the safety of the state vessel requires that he should be thrown over and perish. Mr. Prime Sergeant. My lords, and gentlemen of the jury. It is with no small pain that I rise upon this occasion, to perform the disagreeable task which my duty requires. No man can feel more sincere compassion than I do for the unfortunate youth at the bar, and no man would feel more happy at his being able to establish his innocence to the satisfaction of the jury. But, gentlemen, justice imposes an indispensable duty upon me, and while I am ready, with the greatest candour, to allow the unhappy prisoner every advantage which the ingenuity of his counsel could suggest upon the facts adduced in evidence; yet, gentlemen, I must, in adverting to that evidence, be obliged to show it in a very different light indeed, from that in which it has been exhibited by the prisoner's counsel. I shall be obliged to demonstrate to you, that the facts proved, do fully support the charge of high treason, agreeably to the construction of the statute of treasons, as laid down by the learned gentleman who stated the case on the part of the crown. tody, he was not even charged with any crime; and he appears to have acted solely from motives of compunction. Gentlemen, suppose a man had been at one period of his life of abandoned or dissolute principles, was no room ever to be left for repentance, or amendment? If the witness had no scruples of conscience, by listening to which, he hoped to make some atonement to his country, for the mischief he was promoting, by stopping its current before it overwhelmed the country; if, gentlemen, the witness were afraid merely of personal mischief, he might have withdrawn from the scene; he was at perfect liberty to do so. No person accused him, he was not even suspected, save by his accomplices; he could have fled to America or elsewhere, but his testimony has been perfectly' consistent throughout the trial, as it has been during the former ones. What was his account? he told you he was appalled with horror at hearing the real intention of the Defenders, which he was unacquainted with before; he therefore determined to abandon them, and if possible, to prevent the completion of their diabolical purposes. He disclosed the matter to Mr. Cowan, who advised him to lodge informations, which he accordingly did; and it appears he did so voluntarily, without any apprehension of prosecution, or promise of reward. But will Gentlemen, the circumstance of being a Defender, is of itself a strong impeachment upon the moral character of a man. it be pretended that it altogether precludes his testimony, where he could have had no necessity for coming forward, no fear of punishment, no promise of reward, no apparent object, but what he told you himself, the prevention of public calamity and general mischief? If such testimony were rejected by the law, the secrets of conspirators never could be developed, particularly, where they had skreened their intentions and designs from the prying eye of justice, by the most solemn engagements of privacy. Gentlemen, how are such offenders to be brought to punishment?---You cannot expect that men of respectable character could be acquainted with such schemes, or able to give evidence of them. The law only requires that the best evidence which the case admits of shall be given. Lawler was certainly a particeps criminis with the rest of the party, but when he came quainted with the monstrous extent of their designs and the diabolical plans in agitation, he became appalled with horror, and only obeyed the dictate of his conscience in discoMuch has been said, gentlemen, with re-vering the plot. Thus, gentlemen, he has spect to the testimony of Lawler; it has been violently arraigned by the prisoner's counsel. But, gentlemen, I must deny it is that species of evidence which it has been called; namely, the evidence of an approver swearing to save his own life-for here, gentlemen, no promise of reward ever appeared or existed. Lawler had not been apprehended, he was not in cus ac been made the providential instrument of frustrating this diabolical project, which if left undiscovered for a few weeks' longer would have prevented the possibility of a jury, sitting in that box this day, to discharge the most inestimable privilege of our happy constitution. But, gentlemen, it has been said that the approve; and in presiding upon criminal trials, I will never, so long as I am able to sit, and my brother judges are able to assist me, adjourn the Court, until the issue be finally disposed of. Gentlemen, the indictment which you are now to try is founded upon the statute of Edward 3rd--a statute which has been enjoyed by the happy constitution of these realms for seven hundred years, and which, for one hundred years past it has not been necessary to call into execution in this kingdom. Gentlemen, it may be necessary to state to you, what the accusation is not, in order to disembarrass your minds from the representation of counsel. This is not a charge of felony, under the White-boy act--it is not a charge for levying war to pull down enclosures---it is not a charge against the prisoner for having in his possession unpublished papers --it is not a charge for a tumultuous rising, or of merely assembling with Defenders to commit robbery or burglary---it is not a charge of merely taking, or administering illegal oaths testimony of Lawler is unsupported—it is no such thing?-It has been consistent and circumstantial, as well now as upon the former trials. His testimony is uncontradicted-not a single witness has been adduced to contradict any one fact stated to have passed at any of the various meetings, at different places, and at different times. He has uniformly told the same story, except as to the design upon the chancellor, which was brought out upon the cross-examination, and in every point where the magistrates and the officers of justice have been concerned, his testimony is fully corroborated down to the finding of the same identical oath and catechism in the fob of the prisoner. The ingenuity of the prisoner's counsel in the course of a very long cross-examination, has not been able to warp the witness into the slightest prevarication, and no attempt has been made to prove the contrary of what he has related. He has given the prisoner ample opportunity of doing that, if it were in his power, by mentioning the places where they met---It has not been attempted. But, gentlemen, it is said, that--but, gentlemen, it is an indictment of high Lawler's testimony was rejected and disbelieved by a former jury.---That, gentlemen, I cannot admit to be the fact; for it might be perfectly consistent for the very same jury to acquit Leary upon the evidence given against him by Lawler, and to find the prisoner now at the bar guilty upon the evidence of the same witness. The jury in the former case, might have had some doubt as to the criminality of the man--it did not appear positively that he was present when any oath was administered, and if the jury had any scruples in their minds, so as not to be perfectly satisfied of his guilt, it was their duty to acquit. But, gentlemen, what room is there for doubt in the present case? The actual administration of the oath has been proved, and that very same oath has been found in the prisoner's possession. Mr. Prime Sergeant then commented very fully upon the facts given in evidence, the treasonable nature of the oath, and the zealous activity of the prisoner, from which he inferred that no doubt could remain of his guilt. But, however, if, notwithstanding, they had any reasonable doubt, such as rational men could entertain, it would be their duty to acquit the prisoner. SUMMING UP. Earl of Clonmel---Gentlemen of the Jury; If I felt the smallest difficulty upon the whole of the merits of this case, in proceeding to deliver my opinion upon it forthwith, I would adjourn the Court for a short time, or until the next day, in order to take time to consider of it; but, gentlemen, I do not feel any such difficulty; such adjournments, indeed, have taken place in another country, but it is a precedent which I must confess, I do not much * See the case of Crossfield, antè, p. 91. treason, founded in the statute of Edward 3rd, and it charges the prisoner with associating himself with divers false traitors, styling themselves Defenders, and combining and conspiring with them to aid and assist the persons exercising the powers of government in France, at open war with the king, for the purpose of overturning, by force, the king's government in this country, in church and state, thereby adhering to the king's enemies, and compassing and imagining the king's death. For, gentlemen, it has been truly stated by the learned officer of the crown who opened the case for the prosecution, that any adherence to the king's enemies at open war with his majesty, for the purpose of aiding or assisting them against his majesty, necessarily, in its obvious consequences involves the safety of the king's life and the existence of his government. Consequently, gentlemen, he who is guilty of the one is, by necessary implication, guilty of the other. Therefore it is not necessary that there should be a direct attack upon the king's person, or an actual levy of troops to carry on rebellion, in order to support this indictment; for if a combination, or conspiracy for the purpose, existed amongst his majesty's subjects, and if it can be established by overt acts committed by them, the charge will be thereby as fully substantiated as if the most malicious purpose of such a conspiracy had been perpetrated and completed. Gentlemen, the safety of the state and the constitution itself, is inseparably connected with the safety of the king, who is the first soldier and the first magistrate of the state, and therefore the law, wisely considering the importance of his invaluable life to the peace and existence of society, has guarded even the most distant approaches towards the safety of that life, with the moft scrupulous caution; for, gentlemen, evidence which appeared in the course of the trial, they indented with each other so closely and consistently, without any thing to contradict them, that if you believe the evidence, you cannot hesitate to conclude that the indictment has been fully substantiated. this is the only instance in which the policy of our laws takes the intention of guilt, manifested by plain, unequivocal overt acts, as adequate to the completion of the crime, and inflicts the punishment accordingly for such criminal intention. Having thus stated the law arising upon the case, as far as it occurs to me to be necessary, I shall next proceed to consider the charges stated in this indictment, and the evidence which has been adduced in support of them. [Here his lordship stated the overt acts enumerated in the indictment, and then recapitulated, from his notes, the whole of the evidence.]. His lordship afterwards stated it as his opinion, that all the circumstances separately and collectively considered, showed that a connexion with, and adherence to the French Convention, was the unquestionable purpose of Defenderism, for the end of assisting the French in any invasion of this country, and overturning the government of it; and the guilt of these designs, if the jury believed the testimony of Lawler, was clearly brought home to the prisoner at the bar. Gentlemen, the next object for your consideration will be, the evidence of that witness. How does it appear?-Certainly, not as that of an approver, as has been represented by the counsel; he stands upon very different grounds. An approver, gentle- | men, is a man who, upon being apprehended and charged with a crime, was encouraged by the offer of a pardon, to disclose his crime and prosecute his accomplices. Gentlemen, is that the case of Lawler?-Certainly not. Was he apprehended upon a charge of any crime P-No. Was he offered a pardon --No. Did he prosecute his accomplices out of a necessity to save his own life ?---No. Was there any thing to prevent his escape from justice, if he chose it, without making any discovery ?-No. Had he any malice to the prisoner-Was there any dispute between them?---Nothing of the kind was attempted to be proved. The testimony of the witness throughout was clear, collected, and consistent, without any prevarication. It was circumstantially supported by the testimony of alderman James and Mr. Carleton, and so far from being contradicted by the evidence examined on the part of the prisoner, it was strengthened in several respects. So far as the evidence for the prisoner went, it exactly tallied and indented with the account given by Lawler; but what amounted to very strong presumptive proof, in support of Lawler, was, that notwithstanding the various meetings particularized by him at Plunket-street, at Drury-lane, at Stoneybatter, at Cork-street, not a single tittle of evidence appeared to show that the prisoner was not at any of those meetings--nor did any of those persons stated to have been present at those meetings with the prisoner and Lawler appear to contradict him. So that, gentlemen, comparing the whole of Lawler's evidence with all the other VOL. XXVI. | Gentlemen, the counsel for the prisoner have endeavoured to excite your humanity, in favour of the prisoner's youth. Humanity, no doubt, is a commendable virtue; but, gentlemen, the attribute of mercy belongs not to a jury, when justice requires a verdict upon your oaths, according to the evidence. If the youth of a criminal were to warrant a jury in finding a verdict against evidence, the most desperate conspirators against a state will have nothing more to do, than to engage the boys of a country in their plots, and if they be detected before the accomplishment of their purpose, the humanity of a jury is to intervene, and to screen them from public justice. Gentlemen, there is an instance in the conduct of the great Judge Foster, who was styled an humane judge, worthy of your attention. A boy of only seven years old, was tried before that judge, for murder. It appeared that the boy had been entrusted with the care of a child somewhat younger than himself, and upon a quarrel arising, he had killed the child; sensible of his crime, and apprehensive of detection and punishment, he concealed the body in a dung-hill. Some suspicions arising from the account he gave respecting the child, the boy was locked up in a room until he should tell the truth: at the end of two days, he acknowledged the murder, and discovered where he had hid the body. He was tried, and his years were urged in his defence. He was certainly of very tender years; but the learned judge observed, that his hiding the body, and his prevarication in the account he gave, all marked his sense of the wickedness of the crime.-The jury convicted him-he was not, indeed, executed, but respited from time to time, until at length he died in prison.”— Now, gentlemen, if in the present case, you believe that the prisoner at the bar is so young or so silly, as not to understand what he was about in the proceedings charged and proved against him; or that he was cajoled or enticed to swear oaths, and administer them to others, and to attend meetings of Defenders, for the purpose of seizing arms to assist the French, and all this through mere simplicity, inadvertence, or ignorance of the guilt; there, to be sure, his youth would deserve consideration. But this it is scarcely possible to conceive. You must, therefore, gentlemen, throw all false and partial considerations out of your minds--- you must arm your judgments with * See Yorke's case Fost.: 70; Mr. Justice Foster's report differs in some respects from the account here given by lord Clonmell. That Yorke's is the case to which lord Clonmell alludes, I infer from an expression of Mr. Lysaght in the case of Hart infrà, p. 400. manly feelings, and if you have no doubt, such as rational men may entertain, you will do your duty like conscientious men, and find the prisoner guilty. But if, on the contrary, you should entertain such a reasonable doubt, it will be of course your duty to acquit him.--The verdict will be yours, not that of the Court; and upon your consciences it will rest. Mr. Justice Chamberlain, and Mr. Baron George, declined adding any observations to the jury. About two o'clock in the morning of the 23rd, the Jury retired, and after deliberating for twenty minutes, brought in a verdict of Guilty; but recommended the prisoner as an object of mercy, on account of his youth. The Court then adjourned to ten o'clock on Wednesday morning. [The farther proceedings will be found at the conclusion of the next trial.] 616. Proceedings on the Trial of PATRICK HART* for High Treason, before the Court holden under a Commission of Oyer and Terminer at Dublin, on Wednesday February 24th: 36 GEORGE III. a. D. 1796.† Wednesday, February 24. PATRICK HART was this day put upon his trial upon an indictment similar to that which is set forth in the case of Thomas Kennedy+ and therefore it is thought unnecessary to state it particularly. Francis Kirkpatrick, The following jury were sworn, viz. N. Trumbull, jun. William French, William Lancake, Thomas White, George Pillsworth John Ferns, Note. In swearing the jury, several challenges were taken on the part of the prisoner, for want of freehold. Some doubt was entertained, whether this was a good cause of challenge in the city of Dublin. The attorney general declined making anypoint, or arguing the objection, and the Court directed the persons challenged to be sworn, to answer whether they had freeholds in the city, and such as answered in the negative were not sworn upon the jury, Mr. Solicitor General.-My lords, and gentlemen of the jury, though called on at the instant to state this case, I will not make an idle affectation of being unprepared. Instead of forgetting at this time, so soon after the late trials on the same subject, I doubt whether I ever shall forget the important facts, which this trial, like the former will produce. They are not novel to me, though they must again be explained to you-but conscious as I * See the preceding cases. am of the extreme fatigue which your lordships have already undergone, I shall endeavour to bring the case within as narrow a compass as possible. It is very likely, gentlemen, that you may have heard a great deal before you came into the box; but I will caution you not to suffer your minds to be influenced by any thing but what shall appear on the present trial, in evidence upon the several charges in this very serious accusation against the prisoner. Gentlemen, the indictment is of considerable length. It has been deliberately and correctly read by the officer. Therefore, it is only necessary for me, in order to direct your attention, to state, that notwithstanding the length of the charge and the difficulty that might apparently be attendant upon an investigation of an indictment of such long and complicated formation, the case may be simplified to two charges, which if proved will bear upon the prisoner. of 25 of Edward the third, called the statute of Gentlemen, under that remarkable statute treason, which although it has been acted upon for many centuries in England, has not been brought into familiar notice in this country, till modern times; I say under that statute of Edward the third, we are now regulated, not only in framing the accusation in cases like the present, but we are directed in the course of evidence necessary to bring home guilt to the party accused under that statute, and by cases solemnly adjudged upon trials of a similar nature; true it is, gentlemen, that the crime of which the prisoner stands charged is peculiar in its nature, and different from other crimes known to the law, because under the statute which I have mentioned, the bre imagining and intending of such crime as is +Taken by William Ridgeway, esq. Barris- alluded to, is the completion of the crime, if ter at Law. See it antè that intent be manifested by overt acts laid in the indictment, and sufficiently established by |