204 Slide – American State Trials 1918 Volume X Leo Frank Document

172 X, AMERICAN STATE TRIALS,

principles of civil liberty, the law of treason, you will find
him perpetually contending, and contending with effect, that
although the crown had proved the facts charged, it had not
shown the evil design, the corrupt purpose, without which the
facta are nothing.

Let us hear what he saya to the jury in the ease of Lord
George Gordon.

“You must find that Lord Gorge Gordon assembled these men
‘with that traitorous intention—you must find not merely a riotous,
illegal petitioning—not & tumultuous, indecent importunity to influ-
ence parliamett—not the compulsion of motive, from seeing so great
8 body of people united in sentiment and clamorous supplication—
but the absolute unequivocal compulsion of force, from the hostile
acts of numbers united in rebellious conapiracy and erms.

This is the issue you ere to try; for erimes of all denominations
consist wholly in the purpose of the humen will producing the act:
Actua now facit reum nist mens sit rea—the ect 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 Justiee Coke, whose ebapter on this
crime is the most authoritative and masterly of all his valuable
works, ends almost every centence with an emp/hatieal repetition of it.

The indictment must charge an open act, because the purpose of
the mind, which is the object of trial, ean 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 ‘ma-
Veiously and traitorously did compass, imagine, and intend to raise
and levy war and rebellion against the king;’ this is the malice pre-
pense of treason;—and that to fulfil and bring to effeet such trait-
‘orous compassings and intentions, he did, on the day mentioned in
the indictment, actually essemble them, and levy war and rebellion
against the king. Thus the law, which is made to correct and pun-
ish the wiekedness of the heart, and not the uncousciows deeds of the
body, goes up ¢o the fountain of humen agency, and arraigne the
lurking mischief of the eoul, dragging it ¢o light by the evidence of
open aets. The hostile mind is the crime; and, therefore, unless the
matters which 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.”

In that case it was proved that the prisoner incited the acts
which produced the consequences complained of. Yet he was