subject, taken in its utmost extent of judicial construction, and which you cannot but see, not only in its letter, but in its most strained signification, is confined to acts which immediately, openly, and unambiguously strike at the very root and being of government, and not to any other offenses, however injurious to its peace.

Such were the boundaries of high treason marked out in the reign of Edward the Third; and as often as the vices of bad princes, assisted by weak, submissive parliaments, extended state offenses beyond the strict letter of that act, so often the virtue of better princes and wiser parliaments brought them back again. A long list of new treasons, accumulated in the wretched reign of Richard the Second, from which (to use the language of the act that repealed them) "no man knew what to do or say for doubt of the pains of death," were swept away in the first year of Henry the Fourth, his successor; and many more, which had again sprung up in the following distracted arbitrary reigns, putting tumults and riots on a footing with armed rebellion, were again leveled in the first year of Queen Mary, and the statute of Edward made once more the standard of treasons. The acts, indeed, for securing his present majesty's illustrious house from the machinations of those very papists who are now so highly in favor, have, since that time, been added to the list. But these not being applicable to the present case, the ancient statute is still our only guide, which is so plain and simple in its object-so explicit and correct in its terms-as to leave no room for intrinsic error; and the wisdom of its authors has shut the door against all extension of its plain letter, declaring, in the very body of the act itself, that nothing out of that plain letter should be brought within the pale of treason by inference or construction, but that, if any such cases happened, they should be referred to the parliament.

This wise restriction has been the subject of much just eulogium by all the most celebrated writers on the criminal law of England. Lord Coke says the parliament that made it was on that account called "benedictum," or "blessed"; and the learned and virtuous Judge Hale, a bitter enemy and opposer of constructive treason, speaks of this sacred institution with that enthusiasm which it cannot but inspire in the breast of every lover of the just privileges of mankind.

Gentlemen, in these mild days, when juries are so free and judges so independent, perhaps all these observations might have been spared as unnecessary; but they can do no harm, and this history of treason, so honorable to England, cannot (even imperfectly as I have given it) be unpleasant to Englishmen. At all events, it cannot be thought an inapplicable introduction to saying that Lord George Gordon, who stands before you indicted for that crime, is not—cannot be guilty of it, unless

he has levied war against the king in his realm, contrary to the plain letter, spirit, and intention of the act of the twenty-fifth of Edward the Third, to be extended by no new or occasional construction, to be strained by no fancied analogies, to be measured by no rules of political expediency, to be judged of by no theory, to be determined by the wisdom of no individual, however wise, but to be expounded by the simple, genuine letter of the law.

Gentlemen, the only overt act charged in the indictment is the assembling the multitude, which we all of us remember went up with the petition of the Associated Protestants on the second day of last June. In addressing myself to a humane and sensible jury of Englishmen, sitting in judgment on the life of a fellow citizen, more especially under the direction of a court so filled as this is, I trust I need not remind you that the purposes of that multitude, as originally assembled on that day, and the purposes and acts of him who assembled them, are the sole objects of investigation. All the dismal consequences which followed, and which naturally link themselves with this subject in the firmest minds, must be altogether cut off, and abstracted from your attention, further than the evidence warrants their admission. If the evidence had been coextensive with these consequences-if it had been proved that the same multitude, under the direction of Lord George Gordon, had afterwards attacked the bank, broke open the prisons, and set London in a conflagration,-I should not now be addressing you. Do me the justice to believe that I am neither so foolish as to imagine I could have defended him, nor so profligate to wish it if I could. But when it has appeared, not only by the evidence in the cause, but by the evidence of the thing itself,-by the issues of life, which may be called the evidence of Heaven,-that these dreadful events were either entirely unconnected with the assembling of that multitude to attend the petition of the Protestants, or, at the very worst, the unforeseen, undesigned, unabetted, and deeply-regretted consequences of it, I confess the seriousness and solemnity of this trial sink and dwindle away. Only abstract from your minds all that misfortune, accident, and the wickedness of others have brought upon the scene, and the cause requires no advocate. When I say that it requires no advocate, I mean that it requires no argument to screen it from the guilt of treason. For though I am perfectly convinced of the purity of my noble friend's intentions, yet I am not bound to defend his prudence, nor to set it up as a pattern for imitation, since you are not trying him for imprudence, for indiscrete zeal, or for want of foresight and precaution, but for a deliberate and malicious predetermination to overpower the laws and government of his country by hostile, rebellious force.

The indictment, therefore, first charges that the multitude assembled on the second of June "were armed and arrayed in a war-like manner," which, indeed, if it had omitted to charge, we should not have troubled you with any defense at all, because no judgment could have been given on so defective an indictment; for the statute never meant to put an unarmed assembly of citizens on a footing with armed rebellion, and the crime, whatever it is, must always appear on the record to warrant the judgment of the court.

It is certainly true that it has been held to be matter of evidence, and dependent on circumstances, what numbers, or species of equipment and order, though not the regular equipment and order of soldiers, shall constitute an army, so as to maintain the averment in the indictment of a warlike array; and, likewise, what kind of violence, though not pointed at the king's person, or the existence of the government, shall be construed to be war against the king. But as it has never yet been maintained in argument, in any court of the kingdom, or even speculated upon in theory, that a multitude, without either weapons, offensive or defensive, of any sort or kind, and yet not supplying the want of them by such acts of violence as multitudes sufficiently great can achieve without them, was a hostile army, within the statute; as it has never been asserted by the wildest adventurer in constructive treason that a multitude, armed with nothing, threatening nothing, and doing nothing, was an army levying war, I am entitled to say that the evidence does not support the first charge in the indictment, but that, on the contrary, it is manifestly false, -false in the knowledge of the crown, which prosecutes it; false in the knowledge of every man in London who was not bedridden on Friday, the 2nd of June, and who saw the peaceable demeanor of the Associated Protestants.

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But you will hear, no doubt, from the solicitor general (for they have saved all their intelligence for the reply), that fury supplies arms,Furor arma ministrat,—and the case of Damaree will, I suppose, be referred to, where the people assembled had no banners or arms, but only clubs and bludgeons, yet the ringleader, who led them on to mischief, was adjudged to be guilty of high treason for levying war. This judgment it is not my purpose to impeach, for I have no time for digression to points that do not press upon me. In the case of Damaree, the mob, though not regularly armed, were provided with such weapons as best suited their mischievous designs. There designs were, besides, open and avowed, and all the mischief was done that could have been accomplished if they had been in the completest armor. They burned dissenting meeting-houses protected by law, and Damaree was taken at their head, in flagrante delicto, with a torch in his hand, not only in

the very act of destroying one of them, but leading on his followers, in person, to the avowed destruction of all the rest. There could, therefore, be no doubt of his purpose and intention, nor any great doubt that the perpetration of such purpose was, from its generality, high treason, if perpetrated by such a force as distinguishes a felonious riot from a treasonable levying of war. The principal doubt, therefore, in that case, was whether such an unarmed, riotous force was war, within the meaning of the statute, and on that point very learned men have differed; nor shall I attempt to decide between them, because in this one point they all agree. Gentlemen, I beseech you to attend to me here. I say on this point they all agree: that it is the intention of assembling them which forms the guilt of treason. I will give you the words of high authority, the learned Foster, whose private opinions will, no doubt, be pressed upon you as a doctrine and law, and which, if taken together, as all opinions ought to be, and not extracted in smuggled sentences to serve a shallow trick, I am contented to consider as authority.

That great judge, immediately after supporting the case of Damaree as a levying war, within the statute, against the opinion of Hale in a similar case, namely, the destruction of bawdy houses, which happened in his time, says: "The true criterion, therefore, seems to be, quo animo did the parties assemble?-with what intention did they meet?" On that issue, then, in which I am supported by the whole body of the criminal law of England, concerning which there are no practical precedents of the courts that clash, nor even abstract opinions of the closet that differ, I come forth with boldness to meet the crown. For, even supposing that peaceable multitude, though not hostilely arrayed; though without one species of weapon among them; though assembled without plot or disguise by a public advertisement, exhorting, nay, commanding, peace, and inviting the magistrates to be present to restore it, if broken; though composed of thousands who are now standing around you, unimpeached and unreproved, yet who are all principals in treason, if such assembly was treason,-supposing, I say, this multitude to be, nevertheless, an army, within the statute, still the great question would remain behind, on which the guilt or innocence of the accused must singly depend, and which it is your exclusive province to determine, namely, whether they were assembled by my noble client for the traitorous purpose charged in the indictment. For war must not only be levied, but it must be levied against the king in his realm, i. e., either directly against his person to alter the constitution of the government, of which he is the head, or to suppress the laws committed to his execution by rebellious force. You must find that Lord George Gordon assembled

these men with that traitorous intention. You must find not merely a riotous, illegal petitioning; not a tumultuous, indecent importunity to influence parliament; not the compulsion of motive from seeing so great a body of people united equivocal compulsion of force, from the hostile acts of numbers united in rebellious conspiracy and arms.

This is the issue you are to try, for crimes of all denominations consist wholly in the purpose of the human will producing the act. "Actus non facit reum nisi mens sit rea," the act does not constitute guilt unless the mind be guilty. This is the great text from which the whole moral of penal justice is deduced. It stands at the top of the criminal page throughout all the volumes of our humane and sensible laws, and Lord Chief Justice Coke, whose chapter on this crime is the most authoritative and masterly of all his valuable works, ends almost every sentence with an emphatical repetition of it.

The indictment must charge an open act, because the purpose of the mind, which is the object of trial, can only be known by actions. Or, again to use the words of Foster, who has ably and accurately expressed it: "The traitorous purpose is the treason; the overt act, the means made use of to effectuate the intentions of the heart." But why should I borrow the language of Foster, or of any other man, when the language of the indictment itself is lying before our eyes? What does it say? Does it directly charge the overt act as in itself constituting the crime? No; it charges that the prisoner "maliciously and traitorously did compass, imagine, and intend to raise and levy war and rebellion. against the king," this is the malice prepense of treason, and that, to fulfil and bring to effect such traitorous compassings and intentions, he did, on the day mentioned in the indictment, actually assemble them, and levy war and rebellion against the king. Thus the law, which is made to correct and punish the wickedness of the heart, and not the unconscious deeds of the body, goes up to the fountain of human agency, and arraigns the lurking mischief of the soul, dragging it to light by evidence of open acts. The hostile mind is the crime; and therefore, unless the matters that are in evidence before you do, beyond all doubt or possibility of error, convince you that the prisoner is a determined traitor in his heart, he is not guilty.

It is the same principle which creates all the various degrees of homicide, from that which is excusable to the malignant guilt of murder. The fact is the same in all. The death of the man is the imputed crime; but the intention makes all the difference, and he who killed him is pronounced a murderer-a simple felon or only an unfortunate man, as the circumstances, by which his mind has been deciphered to the jury,