preffions? I did. Did you converfe with him upon it? I did. For what elfe has Major Cartwright been examined to, except a few things? And upon what other principles were all the perfons examined upon the part of Mr. Hardy? Then we are to come to this moft monftrous principle, that, though Mr. Debrett might be examined to a converfation of Mr. Tooke's, in which he expreffed his fentiments, as found in this book, yet it is not to be evidence when it is publifhed to the whole world. Let us paufe a little and fee how it will be maintained; the object is this, you mean to drive this point on by affecting the minds of others, and enforcing on the public a dangerous diflike to the government; at least to effect your traitorous purposes by that most powerful inftrument of human force, the most powerful of all. What fays the law, and what fays common fenfe, the parent of all law, that a man that has that traitorous purpose of bringing round the public mind, cannot produce a book to fhew it is not his mind, and to fhew that it is a mistaken charge, and that his principles are not of the fame fort as charged; I will thew Mr. Horne Tooke wrote this book bona fide, and, in this refpect, it is inconfiftent with human belief, and oppofite to the human experience of man; to drive on a purpose which is cri; minal, is to tell the whole public he is not a friend to that which others mean to bring round and support. Then, in 1782, Major Cartwright fays, he was a firm, fteady, and inflexible mar in his opinion, and that he was not like to take up an opinion one day and lay it down the next, and take up another the third. If the Attorney General fays, he changed those opinions, he has not told you when or how. Is this book not to shew he was a man not likely to change his opinions. I fpeak to a most honourable perfon upon the bench, who tried Mr. Purefoy, the murderer of Colonel Roper-Did he afk whether he was a good officer, drilled his company well, or paid his debts? No; but it was asked whether he was a man of humanity, and officers came a great diftance to fhew the humanity of his difpofition. If firmness and fteadiness is the crime imputed to Mr. Tooke (for what else is imputed to him), it is that he has either confpired to levy war generally against the King, or that he has confpired to levy it in the particular modes pointed out by this indictment, that is to fay, by holding a convention with intent to fubvert, by violence, the happy conftitution of this country, and all these books and pamphlets, fome of which might be libels, and, as I ftated to the Jury, were fo, have been brought against Mr. Tooke to prove the purpose charged. Have not I a right to negative that? Or does the Attorney General mean to fay, that his evidence is conclufive? Suppofe I mean to fay it is falfe,

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that

that Mr. Tooke ever faw the letters from Manchefter or Sheffield, and the other places-I may negative by evidence, that he has feen the books. Suppofe him implicated in the contents, may I not negative the traitorous purpose which constitutes the charge? I, in the name of the prifoner, and of the constitution of this country, call upon your Lordship never to forget that we are here, not upon a trial for a libel, but for compaffing the death of the King, which is treafon. No evidence is given of that, the principle is, the mind of man muft be fifted to the bottom. Upon no other principle can the Attorney General ftand up to addrefs the Jury. Is it to be faid, I am charging the Attorney General with meaning to fhut out any thing, but to argue the cafe fairly. But it appears to me this is one link of a long chain, of evidence, which I propofe to give, and which your Lordships, in conformity with your paft conduct, told Mr. Horne Tooke himfelf, you should liften to with an indulgent ear.

Lord Prefident. I faid nothing of fpecific evidence.

Mr. Erskine. Your Lordship faid, all evidence that was competent to be received, I am not arguing what effect it will have upon the minds of the people, but your Lordship has heard it conceded to me, that this is a book written by Mr. Fooke in his clofet, and carried by him to a book feller for publication. Now I will put the queftion-Would this have been evidence for Mr. Attorney General, fuppofe this a letter written by Mr. Tooke at any time? After he has fhewn the proof he has of the overt act, in order to fhew this man's principles were never monarchical but republican always-Could he produce any thing written by the gentleman at the bar? I prefume he could. Then if that is fo, have you not received in evidence a letter from Chalk Farm, when Lovatt was in the chair, whom I undertake to fay Mr. Tooke never faw, until he faw him in the Tower.Shall a book written by a man he never faw, or that he did not know to be in exiftence be opened againft Mr. Tooke and he not have an opportunity to contradict it? What is that to fhew? it fhews that Mr. Tooke rejoiced at the triumph of liberty, and wifhed it to prevail against furrounding defpots; but that does not fhew we meant to take our fyftem from the French. This I contend is a link in the chain of our evidence, and is admiffible upon the footing of a declaration to the whole public,

In the laft caufe, which I appeal to as a precedent, for it was tried by this court, and, therefore, it is a precedent I may refer to as much as any other precedent in the books, and with more effect, because it is more analagous to the bufinefs in hand, it was decided by the fame Judges, and is in the memory of the court. In that cafe Mr. Lynham was asked, whether, in a public room,

the

the prifoner did not say so and so? What is that but a declaration to a great number of different people? And what is this but a declaration in writing, tendered to the whole of the public, which, it is fuppofed he meant to corrupt by a circulation of writings of a direct oppofite tendency to that I produce now? I only fay, I fhall bow with the greatest humility to whatever judgment your Lordships give upon the fubject. I have no doubt my client will be fatisfied with it, as he ought to be with the justice of his country; but when I examine the principle of evidence laid down by your Lordships, and followed with fo much learning, I cannot bring myself, for a moment, to think that a piece of evidence, which appears to us to be liable to no objection, your Lordship will not permit to be read.

Mr. Gibbs. My Lords, I have only a few words to add to Mr. Erfkine's argument upon this question; one of the questions is, Whether Mr. Tooke has been guilty of an overt act to compafs the King,s death? And one of the overt acts is, that he agreed to the calling a convention for the purpose of depofing the King. There is no proof that he agreed to call a convention for that purpofe; but the gentlemen on the other fide, in order to give colour to an act, the existence of which is proved, fay he met in order to call a convention, and his intention was, that the convention, when called, fhould proceed to depofe the King. They go through the hiftory of his life; they give evidence of his declarations; and they give evidence of his acts; and not only that, but of the acts and declarations of many men in this kingdom, for the purpose of proving fuch a confpiracy existed; and that the gentleman at the bar took a part in that confpiracy. That is the evidence given-then does not common reafon and justice require, if they mean to call perfons to give the history of his general life, and to fhew the tendency of his acts were criminal as they have stated in the declaration;-does not common juftice, reafon, and honefty require Mr. Tooke fhould be permitted to give in evidence acts of his life, to fhew a contrary tendency, and to fhew that his principles are incompatible with these they impute to him. This they offer in evidence as a public act of Mr. Tooke. It is more than a mere declaration; but suppose we were now offering evidence of what Mr. Tooke declared What was the conduct of Mr. Attorney General in the profecution against Hardy? Did he not give fimilar evidence over and over again? Are we to be affected by an act of ours to fhew that we are criminal? Are we to be affected by every declaration of our own, and when other acts can be proved to have been done of a direct contrary tendency to them, shall we not be permitted to produce them? My learned friend

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obferved,

obferved, very properly, when Major Cartwright was called, he was examined to the walks of Mr. Tooke's life-not only to what paffed at the meetings of this fociety, but to the conver fation and the principles of Mr. Tooke, fo far as related to thofe converfations; that evidence paffed, and was not objected to. It might be faid, they did not do it because they did not advert to it. I am fure their learning would have fhewn their objection exifted, and their fagacity would have led to an application of it in the prefent cafe. The whole trial of Hardy confifted of this kind of examination, and the witneffes were conftantly examined by me and my friend, as to what were their principles upon the fubject of government. I am not prepared to cite cafes at prefent, but your Lordship's memory will affure you I am not citing principles that do not exift, and that are not to be found in this cafe. Your Lordship will find them in nuinbers of our flate trials. In the cafe of Lord Ruffel, Dr. Barnop was one of the witneffes for Lord Ruffel; the Doctor was afked, what Lord Ruffel's declarations with refpect to his loyalty were? I believe it was for being concerned in the Rye-houfe plot. He was afked as to any declarations he ever heard come from the prifoner's mouth; and he was crofs-examined by the court, as to where thofe declarations had been heard, in what company they had been heard, and whether in the company of friends or enemies? Is that the conduct the court would have held if they had thought it not proper? They would have faid, it matters not whether declarations of loyalty were ufed or not; your declarations are not evidence for you; but there the court examined to the tendency of them, to the time when they were made, the circumftances under which they were made, and the company in which they were made, all which was perfectly inconfiftent with the opinion now made, that declarations are not evidence at all. Then, if general declarations are evidence for a man in a cafe of high treafon-- how much more muft a public act be to the fame purpofe? You oblerve, the Attorney General made the obfervation, and defired he might hear us before he spoke. He has affigned no reafon whatever upon which he formed his objections. I have, therefore, nothing to anfwer to him- I am only ftating thofe principles of law laid down in other cafes, and thofe acquiefcences in other cafes, which feem to establish the principle that what we offer now is evidence.

Mr. Attorney General. I fhall be governed by your Lordship upon this point. Mr. Gibbs fays, he has heard nothing from the Attorney General.

Mr. Gibbs. The courfe of things is, you take the o! jeétion

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we argue it, and you reply-If you mean to give us the reply, it is very well.

Mr. Attorney General. Certainly.-Your Lordship will recollect in what way this book is produced, it is produced as published in 1782, by the gentleman now at the bar, and no witneffes are called to prove the publication by that gentleman; but I ftate it to the court upon public principle, I difpenfe with the production of a witnefs to prove the book, and I will tell you why I do fo, because I perceive every thing that was mere matter of indulgence, and to fave the time of the Court, is argued upon as affording a principle upon which evidence is to be admitted or not. In that state of it, what Mr. Erfkine fays is true, that the prifoner should be heard; and I fay in this country the prifoner is to be heard; I don't like the obfervation of the gentleman to go. fo far as to fay he is not heard; I will take care he fhall be heard, but I defired that Mr. Erfkine would be fo good as to ftate the ground upon which he thought this evidence; he has done fo, and I rife to state a few reafons why I think it is not evidence, meaning to fay again, I have no anxiety about your decifion upon this piece of evidence, or about the determination of the cause itself, any more than doing my duty in it, let it be determined which way it will.-If your Lordship is of opinion this is evidence, it will go down with more authority from the Court, than if taken upon my bare admifion; it may be better for the public the objections fhould be taken, and I will not trouble your Lordship with a fingle word upon the effect of the evidence, I will not anfwer what was ftated about the infinite number of links in the chain of evidence given in this profecution, only venturing to obferve, that so far from being infinite, as far as I have heard of them of late, they are but few in number.

It was ftated in the cafe of Lord Lovat, evidence of this fort could not be received.

Mr. Erskine, I did not say fo, but it would be of no great weight when received.

Mr. Attorney General. If my friend puts it fo, I have no objection; I conceive if Lord Lovat could be proved to be the author of five hundred books against treafon, and against levying war against the King, it is impoffible for him to offer that as evidence.-Lord Lovat was found in the field of battle, warring against the King, and it would be no evidence to fay, that ten years before he published a book againft making war against the Sovereign; I fay it is never proved till the Jury give their verdict. In Mr. Purefoy's cafe it was exactly the fame; no doubt when a perfon is charged with any other fpecics

of