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GURNEY, B., asked him whom he wished to have as his counsel and attorney. The prisoner named Swabey and Carrington as his counsel, and Mr. Frankum as his attorney; and his Lordship having ascertained that they consented to act as such, assigned them as counsel and attorney for the prisoner; and an order was drawn up, that they should have access to the prisoner at all seasonable hours.
The Assize was adjourned till the 22nd of August, to give time for a copy of the indictment, and lists of the Jurors and witnesses, to be delivered to the prisoner.
Considerably more than ten days before the trial, a copy of the indictment and caption, including the names of the witnesses on the back of the indictment, and also the words, “a true bill;" and a list of the witnesses' names, with their residences and additions; and also a list of the Jurors (a hundred in number) with their residences and additions (a), were delivered to the prisoner.
(a) As to the delivery of a copy 112. But by the stat. 39 & 40 of the indictment, the list of wit- Geo. 3, c. 93, it is enacted, that nesses, and the list of the Jurors, to the provisions of the stat. 7 & 8 the prisoner-see the stat. 7 & 8 W.3, c. 3, and 7 Ann. c. 21, shall W.3, c. 3; 7 Ann. c. 21; and 6 not extend to any indictment for Geo. 4, c. 50. The indictment is high treason in compassing and to be delivered after bill found, imagining the death of the King, and before arraignment. The where the overt act is any direct atnumber of days is reckoned, with tack on his Majesty; and in the stat. respect to the indictment, ex- 6 Geo. 4, c. 50, the like exception clusive of the day of delivery is made; so that if the indictment and day of arraignment; and with in the principal case had consisted respect to the lists, exclusive of of the first count only, the prithe day of delivery and day of trial; soner would not have been enand in neither case ought Sun- titled to a copy of the indictment, days to be reckoned. 1 Ea. P.C. &c.
BEFORE MR. JUSTICE BOSANQUET, AND MR. BARON
THE indictment consisted of five counts. The first August 22nd. count charged, that the prisoner, on the 19th of June, 2 Will. 4, at &c., maliciously and traitorously, with force and arms, "did compass, imagine, devise, and intend the death and destruction of our Lord the King (a); and, to fulfil, perfect, and bring to effect his most evil and wicked treason, and treasonable compassing and imagination
(a) By the stat. 36 Geo. 3, c. 7, it is enacted, “that, if any person or persons whatsoever, after the day of the passing of this act, during the natural life of our most gracious sovereign lord the king, (whom Almighty God preserve and bless with a long and prosperous reign), and until the end of the next session of Parliament after a demise of the crown, shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maiming or wounding, imprisonment or restraint of the person of the same our sovereign lord the king, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of his majesty's dominions or countries; or to levy war against his majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate
or overawe both houses, or either house of parliament; or to move or stir any foreigner or stranger with force to invade this realm, or any other his majesty's dominions or countries under the obeisance of his majesty, his heirs, and successors;
and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed ; being legally convicted thereof, upon the oaths of two lawful and credible witnesses, upon trial, or otherwise convicted or attainted by due course of law, then every such person and persons, so as aforesaid offending, shall be deemed, declared, and adjudged to be a traitor and traitors, and shall suffer pains of death, and also lose and forfeit, as in cases of high treason.”
By the stat. 57 Geo. 3, c. 6, the stat. 36 Geo. 3, c. 7, is made
perpetual, so far as its provisions relate to the heirs and successors of his majesty, the sovereigns of these realms.
aforesaid, he the said D. C., as such false traitor as aforesaid, on the said 19th day of June, in the second year of the reign aforesaid, at the parish aforesaid, in the county aforesaid, with force and arms, maliciously and traitorously did obtain and procure, and in his custody and possession did have and keep, divers, to wit, three stones, with intent thereby and therewith maliciously to kill and destroy our said Lord the King; and, further to fulfil, perfect, and bring to effect his most evil and wicked treason and treasonable compassing and imagination aforesaid, he the said D. C., as such false traitor as aforesaid, on the said 19th day of June, in the second year aforesaid, at the parish aforesaid, in the county aforesaid, with force and arms, maliciously and traitorously did, with great force and violence, cast and throw divers, to wit, two of the said stones, at and against the person of our said Lord the King, with intent thereby and therewith maliciously and traitorously to kill and destroy our said Lord the King, and with one of the said stones so cast and thrown as aforesaid, then and there struck, bruised, and wounded the person of our said Lord the King, against the duty of the allegiance of him the said D. C., against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his crown and dignity.”
The second count charged that the prisoner did compass &c. “ bodily harm to our said sovereign Lord the King, tending to the death and destruction of our said Lord the King.” It stated the same overt acts as the first count, alleging an intent “ to do bodily harm to our said Lord the King, tending to the death and destruction of our said Lord the King."
The third count charged that the prisoner did compass, &c. " the maim and wounding of the person of his said Majesty;" with the same overt acts as the first count, the intent being stated to be, "to maim and wound his said Majesty."
The fourth count charged that the prisoner did compass, &c. “ the wounding of the person of his said Majesty;" and stated the same overt acts, alleging the intent to be,“ to wound the person of his said Majesty."
The fifth count charged that the prisoner did compass, &c. " bodily harm to our said Lord the King, tending to the maim and wounding of the person of his said Majesty;". alleging the same overt acts, but stating the intent to be, “ to do bodily harm to our said Lord the King, tending to maim and wound the person of his said Majesty.”
It was proved that the prisoner had thrown two stones at his Majesty, while on the Ascot Heath Race-course; one of which struck his Majesty on the head. Every part of the case was proved by two witnesses (a).
Swabey addressed the Jury for the prisoner, and contended that the prisoner was insane, but called no wit
Carrington was beginning to address the Jury
Denman, A. G.-I do not mean to object to my learned friend, Mr. Carrington, addressing the Jury, but I would
(a) By the stat 7 & 8 Will. 3, Geo.3, c. 93, this statute is not to c. 3, s. 2, no person can be con- extend to any case of high treason victed of high treason, except on in compassing and imagining the the oath of two witnesses, unless he death of the King, where the overt plead guilty. But it has been held, act is a direct attack on his Mathat, if one witness prove an overt jesty; but the party is to be “inact of treason, and another witness dicted, arraigned, tried, and atprove another overt act of the tainted in the same manner, and same species of treason, that is according to the same course and sufficient. 1 Ea. P. C. 130. It has order of trial in every respect, also been held that this statute and upon the like evidence, as if has made no new restriction on such person or persons were chargconfessions, but any confession ed with murder; but the judgmust be proved by two witnesses. ment and execution are to be the Id. 134. But by the stat. 39 & 40 same as in other cases of treason.
merely submit that a second counsel has no right to address the Jury, if no witnesses are called for the defence.
Carrington referred to Brunt's case (a).
Mr. Justice BOSANQUET.-By the statute 7 & 8 W.3, c. 3, the prisoner is to make his full defence by counsel learned in the law.
Mr. Baron Gurney.-Perhaps, Mr. Attorney-General, you may be right.
Carrington addressed the Jury, and submitted (inter alia, that either the third and fourth counts, or the fifth count of this indictment, were bad. By the statute 36 Geo. 3, c. 7, it is enacted, that, if any person “shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction-maiming or wounding, imprisonment or restraint of the person" of his Majesty, he shall be guilty of high treason. Now, if the offences of intending to maim, and intending to wound, were high treason, then the words of the statute must be read thus, “shall intend death or destruction, or any bodily harm tending to death or destruction," and the sentence must end there; and if so, the fifth count was bad: but if it were to be read thusthat the intending "any bodily harm tending to either the death or destruction, maiming or wounding" of his Majesty, is high treason, then the third and fourth counts were bad.
(a) 33 St. Tr. 1272. In that case of the Jury, the case for the priMr. Curwood had addressed the Ju- soner having closed, without the ry, and proposed to examine a wit- calling of any witness on his behalf, ness who was sworn, but whom he it nevertheless falls to my lot to addid not examiné. Mr. Adolphus, dress to you a very few observations, as the junior counsel for the pri- and that arises from the peculiar soner, then addressed the Jury, benevolence of the law on the and cominenced his address in the subject of high treason." following terms: - "Gentiemen