with respect to their being various from God's laws, and the consequence of their being put into execution, was on this wise: I had a theft committed by one of my own servants; and when he was detected in it, and was going to be discharged for it, he declared himself actuated by the devil, or some evil spirit, and that he could not help himself in what he did; and he begged I would not discharge him, and make his crime notorious, but that I would excuse him for it. The matter was not great; it was only about eighteen pence in four and sixpence: he was sent to buy a thing, he charged four shillings and sixpence, and I think he only gave three shillings for it; the person he bought it of told me he came afterwards, and asked me how I liked the article, because he thought it was very cheap; it was a fowl. Having occasion always to observe the same rule in my private family by the law of God as I do in my public conduct, some people told him in my house he would be hanged, if my lord chose it; this frightened him very much, and to turn him away with a character of that kind I did not choose to do it. : I looked into the law of God, and found it required no man's blood to be taken away; and there are many other countries besides this where no man's blood is shed for the trespass of thievery. Having considered this, and the number of persons whose blood is shed in this country, and that it did not deter others from thievery, and that the judges are obliged to send them into a foreign country, and not to execute their own law upon them, (for the law is death, if it is above a shilling) therefore they have drawn up those laws to send them to Botany Bay, where a military government is established for them, as is set forth in this paper; there is neither judge, jury, nor counsel allowed to the prisoners, whatever offences they may commit, at Botany-bay. Having turned these things in my mind, and having heard how much the hearts of the judges were melted and softened by pronouncing the sentence of death by the imposition of human laws, contrary to God's law, and those laws, though there is much human wisdom in them, having not any effect, I chose to communicate my sentiments before I did it to the public or the prisoners themselves. I went to lord Mansfield, but could gain no admittance. I went next to judge Gould; mentioned my business; he desired me to stay breakfast with him, and converse more fully with him; and there were tears in his eyes when I was talking about it: and he desired me to put my sentiments upon paper in a proper way, that they might be known, and that they might come before the legislature and the government of the country; because, as the laws now stand, the judges are shut up to pronounce according to the letter of the law. Having heard judge Gould say that, I also went to the recorder. This was about the middle of December. The recorder said also he wished the legislature would take up this business, and alter the laws, and that the gaols all over the kingdom were crowded; and judge Gould said it had no effect at all, for some man had been hanged in Holborn (Walker I think it was), and a gold watch was picked out of a gentleman's pocket whilst sentence was executing. He said, they were contrary to the law of God, but agreeable to the law of the land; and the judges are bound to pronounce according to the evidence brought of a prisoner's having committed those crimes. From this I went to sheriff Le Mesurier to ask for permission to speak to some of the most prudent persons who were under sentence of death for small thefts, thought to be objects of mercy, or thought to be included in being transported to Botany-bay. Mr. Le Mesurier did not know me; I only simply went into the sheriffs office. First I went to Newgate, to ask if they would allow me to see any of the prisoners: they said no, not without an order from the sheriffs. I went to sheriff Le Mesurier; he said he would make out an order for my admission: he, while he was making out the order said, What is your name? I told him: then he stopped all of a sudden. He said You have some reason for going there? I told him I had, that I had been with judge Gould and the recorder upon the subject, and my heart was full of it, and the heart of every man ought to be full of it, to see the lives of fellow creatures taken away, contrary to the law of God. He said, Pooh, pooh, I shall not attend to it at all.' Having made use of these words, I took him up in a solemn language; I addressed myself to him in such a manner that I made him beg my pardon three times before his own clerks in the office, not by any threats of beating, or the like, but by language applied to his heart. Finding I could get no access to speak to any of the particular prisoners, I spoke to Mr. Pitt and Mr. Villette, the ordinary of Newgate, and he agreed with me that the laws of God were exactly as I said, but he thought it was not his duty to tell the people when they were dying, that the laws of God were contrary to the laws they were going to be executed upon. I told him he did not do his duty to God if he did not. After this I went home to my own house, and put some of my sentiments upon paper. You will observe that there is no proof brought of my having written it at all. They say I have written it and published it, &c.; they have proved the publication of it in a manner. The information says, it was written maliciously, scandalously, and with such views which were not in my heart at all. I have told my lord, and the jury, the motives that were in my heart; and you see, that so far from my ideas, as the attorney-general has wickedly insinuated, having tended to subvert order in the country, he himself, and his associates, and the government, and the parliament, have drawn up a bill to alter the law in this case as much as I could wish it to be altered; it is from death to milder punish ment. are brought against me: this one is sixteen months ago; the other information which you are to try also, the French information, is ten months ago, August 1786. The informations er officio are brought to trial without any previous finding by the grand jury, only upon the information of the attorney-general, and no previous finding by the way of indictment; therefore there is no criminality passed by any evidence upon this prosecution against my conduct as yet, and the only legal methods of these informations is this: Informations are of two sorts; first, those which are partly at the suit of the So far from any man having committed any crime in supporting the law of God in preference to the law of man upon all occasions, that in last Saturday night's Gazette the king states in his proclamation that the strict observation of God's law is absolutely necessary for his subjects of all ranks to bring a blessing upon his people and government. Iking, and partly at that of a subject; and could have brought in evidence, that the king, in his own proclamation, has said no more than I have said in this. I wish God's laws to be established in this country as I do all over the world, that people's hearts may be glad. I do wish God to be not only over this country but over the whole world, and it is time God's law should be over the whole world. Gentlemen, the attorney-general said it was with a seditious view, and that the visits to the prisoners were at the time of the publication of the pamphlets. The visits to the prisoners were at the time I have mentioned, and not at the time of the publication of the pamphlets; and that such pamphlets as were upon the subject of the prisoners were not sent in to the prisoners to stir them up, or sent to them during the execution, when the parson would be obliged to eat up all he said, or to lye before the people. That would have been the time to stir them up; but I did no such thing, I sent them to Mr. Pitt and his brother, and when Mr. Pitt came to my house for some, he said, why did not your lordship send one to Mr. Akerman, he is a good sort of a man, and he will think it very odd. I. declare to God these are the words, he will think it very odd you should send us the pamphlets, and not send one to him, who is the keeper of the gaol; which I did. secondly, such as are only in the name of the king: the former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to 'the use of the king, and another to the use of the informer, and are a sort of qui tam actions (the nature of which was explained in a former volume) only carried on by a 'criminal instead of a civil process, upon which I shall therefore only observe, that by the statute 31 Eliz. cap. 5. no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king, and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offence, nor on behalf of the crown after the lapse of two years longer; nor where the forfeiture is originally given only to the king can such prosecution be had after the expiration of two years from the commission of the offence. 'The informations that are exhibited in the name of the king alone are also of two kinds; first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney'general; secondly, those in which though the king is the nominal prosecutor, yet it is ' at the relation of some private person or common informer, and they are filed by the You see they do not prove the smallestking's coroner and attorney in the Court of connexion between me and those prisoners; whatever their sentences were, whether death i or banishment, I don't know which, though they state in their information that I published and wrote it, and stirred them up in several gaols. There is only one gaol with which they prove the smallest connexion at all; with the New Gaol in the Borough they prove no kind of connexion whatever. There is another thing, and this is a very serious part I am going to say now, that either the judge, I don't know very properly that I may call judge Buller the judge in the beginning of the proceedings, because there was a senior judge then in the Court of King's-bench-that either the judge and the Court of King's-bench are wrong in the manner in which they have suffered this proceeding to go on, o. the attorney and solicitor-general are wrong in the way they have gone on; both these informations King's-bench, usually called the Master of the Crown-office, who is for this purpose the standing officer of the public.' I should state to the jury that this is in judge Blackstone's book, which I believe all the judges approve of upon this subject:-" The objects of the king's own prosecutions, filed ea officio by his own attorney-general, are properly such enormous misdemesnors as peculiarly tend to disturb or endanger his government or to molest or affront him in the regular discharge of his royal functions: for offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous appli'cation to any other tribunal;'-That is, * Commentaries, vol. iv. pp. 308, et seq. without waiting for any previous finding by an indictment, to take the person immediately, supposing he has government and the laws in such a way that if you don't take him in the act he will turn them over so in a moment; and in such a case the attorney-general has a right to attach such a person for fear he should put his intentions into execution; that if you don't take him immediately the government is subverted, and there is a good reason for keeping those informations ex officio upon the statute books: I do not say they are contrary to the laws of the land, but are very necessary when executed with judgment, and not with views of harassing and vexation. They have been above ten months in the first cause, and six months in the second: now there are many grand juries have sat within ten and within six months, and I have been at large all the time, and might communicate with whoever I pleased; whereas, if they had proceeded properly in the business, my offence ought to have been so high that I ought to have been taken into custody immediately, and tried in the immediate summary proceeding of the judges, as it is in this case, without waiting for the previous finding of a grand jury: Which power, thus necessary not only to the ease and safety, but even to the very existence of the executive magis'trate, was originally reserved in the great plan of the English constitution, wherein • provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the 'master of the Crown-office, upon the complaint or relation of a private subject, are any gross and notorious misdemesnors, ' riots, batteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the government (for these are 'left to the care of the attorney-general), but ❝ which on account of their magnitude or pernicious example deserve the most public animadversion; and when an information is filed either thus, or by the attorney-general er officio, it must be tried by a petit jury of the county where the offence arises; after which, if the defendant be found guil ty, the Court must be resorted to for his 'punishment.' Judge Blackstone further adds, "There can be no doubt but that this <mode of prosecution by information (or sug'gestion), filed on record by the king's attorney-general, or by his coroner or master of the Crown-office in the Court of King'sbench, is as ancient as the common law itself: for as the king was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever a grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal suit, so when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misde<mesnor, either personally against the king or his government, or against the public t peace and good order, they were at liberty, 'without waiting for any farther intelligence, to convey that information to the Court of King's-bench by a suggestion on record, and to carry on the prosecution in bis ma'jesty's name. But these informations (of every kind) are confined by the constitutional law to misdemesnors only, for wherever any capital offence is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it. And as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's Court of King's-bench, the subject had no reason to complain." No man can have reason to complain if brought to an immediatete trial without waiting for the accusation being found by the grand jury, and that was the way I understood I ought to have been tried; and I want to know whether the court has winked at the manner of the attorney-general's going out of the mode of prosecuting it; for if the Court countenances the attorney-general in prosecuting in a way that states the offence to be so great that a person must be prosecuted immediately without waiting for a verisimilitude of being found by a grand jury to be put upon trial by their peers, for if the judges agree to that, that grand juries should be entirely left off in this country, as they have done in Botany-Bay, where there is no previous finding at all; the men are brought to trials there by the military, but here if they are brought to a civil tribunal out of the common form I am sure a judge of your lordship's character will not countenance it, and therefore I want to know at what time it was the Court winked at this prosecution not being brought forward immediately, the offence being so atrocious that there was not time to wait for the finding of a grand jury. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment. 'But when the statute 3 Hen. 7th. cap. 1, had extended the jurisdiction of the Court of Star-chamber, the members of which were the sole judges of the law, the fact, and the penalty;'-Here is another thing I have heard, that you hold this doctrine, this pernicious doctrine, that the jury are not the judges whether the libel is scandalous, false, and seditious, but that the jury are only to judge whether the facts are proved or not: that does not relate to my case; I only give Mr. Justice Buller this opportunity in his charge to the jury, to say whether the jury are not also the judges whether the libel is false, scandalous, and seditious, or whether the jury are merely confined to say whether the facts stated are proved or not, because I hold, and Mr. Erskine, and some of the judges, judge Gould I believe, holds, that the jury are to judge whether the libel itself is false, scandalous, and seditious, as well as whether the libel is proved to be published by the person. I hold it to be necessary to prove that: but I only mention this because I have a perfect opinion of Mr. Justice Buller's integrity; I have no doubt about his being a man of integrity as well as of penetration and discernment. And when the statute 11 Hen. 7th, cap. 3, had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assizes, or before the justices of the peace, who were to hear and determine the same according to their own discretion; then it was that the legal and orderly jurisdiction of the Court of King'sbench fell into disuse and oblivion; and Empson and Dudley (the wicked instru'ments of king Hen. 7th,) by hunting out obsolete penalties, and this tyrannical mode of prosecution, with other oppressive devices, continually harassed the subject, and shamefully enriched the crown. The latter of these acts was soon indeed repealed by sta'tute 1 Hen. 8th, cap. 6; but the Court of Starchamber continued in high vigour, and daily increasing its authority, for more than a century longer, till finally abolished by sta. tute 16, Car. 1st. cap. 10.' This practice was entirely put an end to in this illegal method by Empson and Dudley † at the time of the revolution, but the power is still in the constitution to proceed suminarily in this manner, having the whole course of the laws and constitution upon their side; but then they must do it quickly, agreeable to the method of the prosecution. Now they have taken the method of prosecution long and harassing to me for ten months together, without taking the matter of the prosecution which is to bring it to an immediate trial: because if a man is taken up to be tried without any previous finding by a jury, it is a comfort to him he is tried directly upon it; whereas if you give it a verisimilitude to an accusation by a grand jury, then you take the ordinary course of trial; but this is a summary proceeding lodged in the executive government, which upon great occasions, such as the attorney-general has stated mine to be, but which it is not, where a man had an intention to overturn the government, and that if he was not taken into custody immediately, the government was gone. Now they should prove that I did stir up the people, that I did prevent the Botany-bay scheme being carried into execution. Now I did nothing more than state upon paper such terms, * See the case of the Dean of St. Asaph, vol. 21, p. 847. See their case, ante, vol 1, p. 283, wishing them to come into consideration, as judge Gould and the recorder wished to come under consideration also, that the penal laws evidently wanted alteration; which is proved by the parliament and the judges drawing up this new act to send them to Botany-bay. I do not know that I shall trouble the Court with any thing farther, because, to speak the truth, I have not a paper.--I meant if I had time, to bring my books with me to prove that every word of that pamphlet is in the bible, and that it is consistent with the sentiments of the most humane and besthearted men now-such as judge Gould and the recorder,-to have an alteration made in the felony laws; but what that alteration is, is left, as the judges and the people stand at present, to the wisdom of parliament; for by the laws, as they now stand, if a person steals a shilling and the fact is proved, the sentence is invariably death. I should have made a much better defence, if I had had leave to subpoena my witnesses; and should also have shown you something about the New Gaol, which would have surprised you that when these gentlemen, these wicked gentlemen, wicked, false, scandalous defamers-when they wanted to prove this business upon me, and thought there was a deal of crime in it, an art they prac tised at Mr. Clark's the king's messenger in Mount-row all these people were to be summoned as witnesses. I shall give a short account; the jury, perhaps, will believe what I say. Mr. Clark, the king's messenger, sent for Richard Hicks, at the New Inn at Westminster-bridge; he is a poor man. When he came to him, he gave him a letter to lord George Gordon, Welbeck street, and told him to carry that letter to lord George, and deliver it into his own hand; and tell lord George that he came from the New Goal in the Borough, from the prisoners, and that he was to get copies of this petition, as many as his lordship could spare, and bring them back to the prisoners in the Borough. I opened the letter; it was a forged letterI went to justice Bond the day afterwards in Bow-street-it was a forged letter, saying, We your lordship's friends and admirers, &c. the prisoners in the New Gaol in the Borough, having heard of a petition-so and so do request of your lordship to send so many by the bearer, who is a trusty person.' Upon reading the paper it came into my heart immediately, that this was some falsehood, for I had no acquaintance with any prisoner at all in the Borough. I sent for the man up stairs. When he came up, I began questioning him who gave him that letter, and who he came from. He began trembling, and was much frightened. I rang for the maid-servant to come up stairs. When she came into the room, and the man servant too, I bid the man not to be frightened, but tell the whole truth. He said, "To tell the was truth, Mr. Clark the king's messenger sent this business, of relating who spoke to you, for me to his house to give you this letter, pulled off their hats to you, and the houses and say, I came from the prisoners in the you went into. New Gaol; and when I have got the petitions I state this to show how they tried to get I am to go back to the One Tun in One Tun- evidence of my delivering this to the keeper court, and ask for captain Macdonald, and of the New Prison. You would have had all deliver the petitions to him.--So then you these people before you, if I had not been did not come from the New Gaol ?-No, I did interrupted in serving my subpænas. I was not, says he.-Nor are you to carry them interrupted and taken into custody by the back again there ?-He said, no; but to guards, when offering to subpæna the marquis captain Macdonald. I said, I would go with) of Carmarthen. I was soon ordered to him there. I went with him : it is a very be let go, and the marquis said he would blackguard-house, known to all the public meet me at his father's at five o'clock; and offices, where the king's servants meet with begged I would not make a disturbance at the people they want to bring informations St. James's. At five o'clock I saw the against. I went up to the front room, and marquis, and he assured me every thing asked for captain Macdonald. Immediately should be done, and that he could bring that the woman of the House showed me into a letter from the French ambassador to me back room. When I came to the door of upon the other information the back room, a person came out-Who And here I beg his lordship will by-and-by wants captain Macdonald? I said, I want tell me what is to become of the first infor him. Is your name Macdonald ? He said, mation? The same jury is to try them both; no; his name was not Macdonald, it and I don't understand they incan to bring Hamilton: he went by a false name. There on the first; for they cannot bring it on till were four or five people in the room. I asked these witnesses come; and the jury cannot the man, Is this the company you were to sit and do justice in that case. come to? Yes, says he, and there sits the I have nothing further to say, gentleking's messenger. Clark was in the com- men, than to show that they wish by every pany, William Drummond, esq. was in the art and every means to make me a publisher company, and two or three more. Some in a seditious manner in the New Gaol ; but would give me their names, and some would I did not comply with any such thing: but not; but the king's messenger refused to as I meant nothing but that the law in that give me his name, and denied he was of that case might be corrected, which you see was name, though the people of the House knew in the heart of the king and his parliament, him. as they have made an alteration in the law I went next day to Bow-street to justice with respect to the people that were conBond: he said there was no occasion to take demned. notice of it: he said he had heard of that I sent some of these pamphlets to the Clark, that he was an infamous man. judges as soon as they were wrote, to the Clark hired two men to follow me con- heads, the keepers of the gaols, and the stantly, well-dressed people, to follow me minister of the gaol, without any view to every where: if I went into a coffee-house, to to raise sedition and tumult among the go into the coffee-house; if I took a coach, people: if I had, I would have gone on the to take a coach and follow me; to live at day of the execution and told the people, the public-house opposite to me, and to make when he was confessing them and tellimg written accounts every day, and carry them them that it was just and conformable to to the treasury at night, and particularly to God's law, I would have told them it was no mark what officers pulled off their hats to such thing, if that had been my intention; me; to mark down every man's name that but I hope as they have made an act to send came into my house, or out of it; where I these people to Botany-bay, that there will went to, and how long I stayed. Mr. be some means devised by the legislature to Nepean, a clerk of the treasury, paid them, alter the laws of theft in this country. and lord Sydney had the management of I can make no better defence now, because it. If their accounts were not full nough my witnesses are not present; and therethey were told, You must be more particular, fore you must take it upon my word what I it must be every hour.-There were say relative to this business; what judge variety upon me; they used to relieve one Gould and the recorder said in December; another. —and this petition was not printed till this This man, King, came to me in the summer year.-There is not the smallest connexion after he had been employed. He said, My of any of the prisoners that are mentioned lord, my heart is so full I can no longer bare as condemned with me; or that I had any to conceal it from you. I was employed with particular connexion with them, only that another man in the winter. I am surprised there were such prisoners condemned to you never saw us, we used to follow you in death and transportation for thefts; and that the street, and into every coffee-house. I his majesty and the parliament had altered was paid by Clark of the treasury; and was their punishments just as much as I wished to turned off for not being particular enough in alter them by that act. a |